248 A.D. 599 | N.Y. App. Div. | 1936
The plaintiff sued on three contracts with individual members of the Capitol Club of Flatbush Holding Co., Inc., whereby the plaintiff undertook to make loans to the club to be represented by several notes of $2,500 each, signed by the club and each indorsed by one of the club members, with all the signers of the contracts liable for the full amount under certain conditions. These notes were to be held and discounted by the bank as representing the loans. Instead of following the plan outlined by the agreements, the bank subsequently took three large notes in collateral form and treated the small notes as collateral security to the larger notes, together with other collateral. There was no assent given by the individual guarantors to such a change, nor was any one created as agent to give such assent. This violated the original agreements in material respects. These actions on the guaranty cannot be maintained. (Bank of Italy v. Merchants Nat. Bank, 236 N. Y. 106; Guardian Trust Co. v. Peabody, 122 App. Div. 648; affd., 195 N. Y. 544; Peoples Bank of Hamburg, N. Y., v. Gates, Inc., 232 App. Div. 328; affd., 258 N. Y. 561.) Judgments for the plaintiff in the three actions reversed on the law, with costs, and the complaints dismissed, with costs. There has been a trial on the merits since the former appeals were decided. (242 App. Div. 632.) Lazansky, P. J., Young, Davis, Johnston and Adel, JJ., concur.