Bossert v. Striker

126 N.Y.S. 726 | N.Y. App. Div. | 1910

Jenks, J. :

We think that the “second guarantee” may be regarded as an order upon the plaintiffs to furnish materials of the kind required by the contract of Winberg, but to be delivered in the name, i. e., to the estate of Charles W. Smith. Payment is promised, not only for the materials furnished, but for those to be furnished, and payment is guaranteed as before, i. e., as the work progresses. It is ‘true that the plaintiffs plead on a guarantee, but we may gather from the complaint that the materials were to be' delivered at certain specified buildings (which it appears were the property of the estate), and, as we have said, the “ second guarantee ” indicates, that there was a direct order for delivery to the estate. We think, then, that the circumstances .admit a consideration that this Undertaking was original in its, character. (See Ward v. Hasbrouck, 169 N. Y. 407.) The action was properly brought against the defendant per- sonally. (New v. Nicoll, 12 Hun, 431; affd., 73 N. Y. 127, and authorities cited.)

The judgment is reversed and a new trial is granted, costs .to abide the event.

Woodward, Thomas and Carr, JJ., concurred; Hirschberg, P. J., dissented.

Judgment reversed and new trial granted, costs to abide the event.