Lawson v. Buckley

Learned, P. J. This is an action on a note signed by both defendants. Nothing on the note shows that Timothy was surety. Nothing that is proved as to the negotiation of the note shows that the plaintiff was then told that [179] Timothy was surety. But Timothy now claims that he was in fact surety, and that plaintiff knew this; and probably there is evidence to sustain this. He also claims that he told plaintiff, about three months after the note was made, that he must “make Daniel come to time this fall,” and that since that time Daniel has become unable to pay. This kind of defense is one that should never be favored. It is not just. The surety has the remedy in his own hands. He can pay up the debt, as by its terms he has agreed to do, and can then sue this surety; so that, if he fears the insolvency of the surety, he has abundant remedy. The doctrine came into this state against opposition. The same judge of the court of appeals who stated it rather strongly in Colgrove v. Tallman, 67 N. Y. 95, said in Hunt v. Purdy, 82 N. Y. 486, that it was not a favorite, and is not to be applied with laxity. See, to the same effect, Newcomb v. Hale, 90 N. Y. 326. In Hunt v. Purdy, the court say, at least, that the notice to the creditor should clearly inform him that he is required to take proceedings in the courts. To the same effect is Machine Co. v. Farrington, 82 N. Y. 121, 131: “Explicit notice or request to the creditor to take legal proceedings to collect the debt. ” Here this case fails. The only notice by Timothy to plaintiff is testified to by plaintiff himself: “You must make Daniel come to time this fall. You know it is the best time for making money with farmers.” How, this did not direct plaintiff to take legal proceedings. Timothy and Daniel were brothers. If Timothy wished plaintiff to sue Daniel at the peril of losing his claim on Timothy in case of neglect, he should have said so unequivocally. Very possibly, he did not wish to direct the plaintiff in express terms to sue, lest Daniel should blame him for so doing. The testimony above cited is all that is shown to have been said by Timothy. Plaintiff testifies that, to satisfy Timothy, he replied he would see Daniel about the note, and see what he bad been trying to do; so that this reply does not indicate that the request of the plaintiff implied that legal proceedings were to be taken. A motion to set aside the verdict as against evidence was denied. The case has been argued on the supposition that appeal has been taken; and the case shows that it contains all the evidence. It seems to me, therefore, that there was not evidence to sustain the defense. Judgment and order reversed; new trial granted; costs to abide event. Ingalls, J., concurs.