6 N.Y.S. 441 | N.Y. Sup. Ct. | 1889
The questions presented by this appeal arise mainly from facts alleged in the complaint and admitted by the answer. One Mary E. Husnu. as principal maker, with James L. Brewer and William R. Baskin, (the latter now deceased,) as sureties, did, on the 22d day of February, 1876, execute and deliver their joint and several promissory note to the defendant An
Mr. Baskin having died before the enactment of section 758 of the Code of Civil Procedure, the rule applicable to this case is the one existing at common law', as established by sundry cases in our courts, as is contended by the counsel for the plaintiffs. It becomes necessary, therefore, to examine somewhat in detail the authorities relied upon for such contention. In the case of McNulty v. Hurd, 18 Hun, 1, there is language used by the court which would go far to sustain the argument thus made, but upon an examination of the case it WÚ11 be found that the decision turned upon the fact that the'creditor had, by his dealing with the principal debtor without the knowledge or consent of the surety, released the surety from his obligation. In the case of Risley v. Brown, 67 N. Y. 160, it was held that, upon the death of one of the makers of a joint promissory note who had simply signed as surety, his estate was absolutely discharged from the payment thereof, both in law and in equity. The case arose upon a motion to substitute the personal representatives of a surety, against whom, with his principal, a joint judgment had been obtained, as defendant in his stead; he having died after the affirmance of the judgment by the general term, and during the pendency of an appeal to the court of appeals, upon which appeal an undertaking had been given staying execution. The head-note in this case speaks of the judgment against the surety being discharged by his death, but there is nothing in the ease itsejf that would warrant such an assertion. The case of Hauck v. Craighead, Id. 432, was one either of joint liability or suretyship, and it was there held that in such a case the estate of the deceased party was released. In the case of Richardson v. Draper, 87 N. Y. 337, it was held that the death of a joint obligor discharges his obligation only in a case where it appears he is a mere surety, and received no benefit whatever from the obligation. The court there say: “It is undoubtedly the rule that, in case of a joint obligation of
None of the cases above mentioned, nor others upon the same general subject, referred to in the several opinions in those cases, involve the question before us. When thoroughly analyzed, it is found that they 'go no further than to hold that, under the practice as it stood before the enactment of section 758 of the Code of Civil Procedure, the personal representatives could not be charged in an action with other parties, where the deceased person whom they represented was a mere surety or a joint obligor. This, however, was not a rule of liability; it was rather a rule of procedure. Its origin doubtless may be found in the inability of the courts first enunciating the principle, before the consolidation of the modes of procedure in law and in equity, to see how the liability should be enforced in an action at law, in conjunction with other persons who were liable for the entire indebtedness. If there be a defect in the reasoning of the earlier cases upon this subject, it is attributable rather to the distribution of judicial powers among the different courts than to any inherent difficulty in enforcing liability against persons standing in different relations to the creditor. Provisions did not then exist for enforcing a judgment that might be procured against the personal representatives in such an action. I do not understand, however, that the cases have gone to the extent of holding that the estate of a surety or of a joint obligor is entirely released by his death, but rather only to the extent of holding that the remedy at common law against the personal representatives of such deceased person is lost by the death of the latter. None of the cases have gone so far as to declare that any lien which a creditor might have upon the property of the surety or of the joint obligor should be discharged by the death of the latter. The rule was established only to relieve the personal estate and personal representatives from the beginning of an action, or the continuance thereof after begun, before judgment, when instituted to collect the indebtedness incurred by the surety or joint obligor. The case which comes nearest to being a guide for us in the case at bar is that of Smith v. Osborne, 31 Hun, 390. In that case the party executed a joint promissory note, solely for the accommodation of the maker, with knowledge of such relationship of the parties by the payee, The transferee of the note brought an action against the surety alone, and re