28 N.Y.S. 210 | N.Y. Sup. Ct. | 1894
The action was brought in the county court upon a guaranty by the defendant of a promissory note, of date March 25, 1890, made by Ernest Trowbridge and George B. Emory, for $72, payable to the order of the plaintiff, one year after its date, at the bank of Porter & Davis, at Canisteo, N. Y. The plaintiff failed to allege in the complaint that the defendant was a resident of the county of Steuben, which was a requisite fact to enable the court to assume jurisdiction of the person of the defendant (Code Civ. -Proc. § 340, subd. 3); and for that reason the- latter might have demurred, or declined to appear and answer the complaint. He did, however, appear and answer it upon
Before the maturity of the note the plaintiff indorsed and transferred it to one Shaw, and after default in its payment- he recovered judgment against the plaintiff as indorser. The latter paid to Shaw the judgment, and took from him the note. It is now insisted that the note was merged in the recovery, and that the defendant’s guaranty is not the subject of an action by the plaintiff. It may be observed that the plaintiff’s contract of indorsement was a new and independent one,—to pay the amount of the note upon the condition that he should become charged in the manner prescribed by the law merchant. The action and recovery against him were upon his contract of indorsement. The promise of the makers, as such, of the note was not, nor was the defendant’s undertaking of guaranty, the subject of the recovery by
The further question raised—whether or not there was an alteration after its delivery was made, by inserting words which changed the terms of it from a joint to a joint and several note— was one of fact, arising upon a conflict of evidence, and was disposed of by the findings of the referee adversely to the defendant. The judgment should be affirmed. All concur.