Oswald v. Fratenburgh

Mitchell, J. The facts fully appear in the findings of the court. ■ The important question here is, upon the facts found, for whom were [272] defendants Warner and Fink guarantors? A guaranty is an undertaking to answer for the performance of some contract of another. The contract of guaranty presupposes another and original contract* to which it is collateral. In this case the contract of guaranty was between Warner and Fink, as guarantors, and plaintiff as guarantee. The original contract to which this was collateral was the lease from plaintiff to Fratenburgh. This was the only contract to which the guaranty could be collateral, for Fratenburgh was the only person with whom plaintiff made any contract. She had no contract with Fagan & Magner. They were simply assignees of Fratenburgh. It. is true that the lease from plaintiff to Fratenburgh had not been delivered prior to the assignment by him to Fagan & Magner, because of the lack of guarantors; but, when delivered, it was the contract of plaintiff with Fratenburgh, and not with Fagan & Magner. It is also true that Warner and Fink did not make this guaranty until Fratenburgh had indorsed upon the lease that assignment to Fagan & Magner, and it may be true that, but for that assignment, they would, not have made this guaranty; but nevertheless, when made, it was as collateral to the lease from plaintiff to Fratenburgh. Consequently Warner and Fink were guarantors for Fratenburgh, and they are liable for his default. The assignment of the lease by Fratenburgh to Fagan & Magner, with or without the consent of the plaintiff, would not release, or at all affect, his liability for the payment of the rent. Of course, as long as Fagan & Magner continued to occupy the premises, they would be liable for the rent by reason of the privity of estate between them and plaintiff; but Fratenburgh would continue liable on his covenants in the lease. Hence the assignment of the lease did not affect the liability of Warner and Fink as guarantors. Taylor, Landl. & Ten. § 371; Morgan v. Smith, 70 N. Y. 537, 544. The foregoing, in our judgment, states correctly the legal relations of the parties to each other. But if it be assumed that the contract of lease was between plaintiff, as lessor, and Fagan & Magner, as lessees, although in form assignees of Fratenburgh, and the defendants were guarantors for them, the result would necessarily be the same. The failure to pay the rent would, in this view of the case, be the default of Fagan & Magner, and the defendants liable as their [273] gu arantors. And the same result would follow if it should be assumed that Fagan & Magner were assignees of the lease, and that defendants became guarantors for them as such; for there is no evidence that Fagan & Magner ever terminated their liability for the rent by assigning the lease, or by ceasing to occupy the premises. The seventh finding of fact seems to be wholly unsupported by evidence. The court was perhaps misled by an indorsement upon the lease, which, however, was never proved nor introduced in evidence. It can hardly be necessary to add that the execution of the lease by plaintiff was sufficient consideration for defendants’ guaranty. Order affirmed.