| N.Y. App. Div. | Jul 1, 1899
The collaterals mentioned in the notes did not include the real estate, part of the proceeds of which when realized went to discharge the debt or obligation due from Stier to the McWilliam estate. What in fact the appellant insists upon is that Stier, being the agent for the plaintiff and having money in his hands which was realized from the sale of the real estate, should have applied what was due to the McWilliam estate to the payment of the notes; or, differently expressed, that the plaintiff, being chargeable with the same notice and knowledge that her attorney and agent had, which included the fact that Basines was an accommodation maker and, therefore, a mere surety, must be regarded as holding the McWilliam real estate interest in equity as collateral to the notes, whether that interest was in Mr.- Dayton’á, Mr. Stier’s or her own hands, and, therefore, the proceeds of the interest should have been used to the extinguishment of the notes.
It will be noticed that no claim is made of any agreement to consider the real "estate as collateral to the notes, but only that, being chargeable with the fact that the defendant was but a surety, the
It is a little difficult to follow the reasoning upon which the appellant attempts to sustain this contention, for the notes sued on are payable “on demand and on return of the securities given,” and,, as urged by the respondent, there was no agreement to use the notes,, and she could not be guilty of any wrong in not using them, as an offset to her attorney’s obligation to the executors of McWilliam tO' pay over a certain sum when realized from a sale of the real estate. To sustain the defense that a creditor, as between a surety and the principal debtor, must resort first to the property of the principal debtor, two things are necessary — a request by the surety to the ¿reditor so to proceed; and a failure to comply therewith, with resultant damage. (Pain v. Packard, 13 Johns. 174" court="N.Y. Sup. Ct." date_filed="1816-05-15" href="https://app.midpage.ai/document/pain-v-packard-5473664?utm_source=webapp" opinion_id="5473664">13 Johns. 174; King v. Baldwin, 17 id. 384; Remsen v. Beekman, 25 N.Y. 552" court="NY" date_filed="1862-12-05" href="https://app.midpage.ai/document/remsen-v--beekman-3615824?utm_source=webapp" opinion_id="3615824">25 N. Y. 552.)
The defendant does not claim to have made any request, or even to have known, till after McWilliam’s death, of the arrangement about the real estate, or of the transfer of the obligation of Stier to Dayton, and. afterwards to McWilliam’s executors: Even had!
the defendant known and made the request, it is doubtful, if, while the relations of the parties were such as there stated, the real estate interest represented by Stier’s obligation to the executors could have been retained, appropriated or applied in payment of the notes. Seemingly, the executors were entitled to receive the money from Stier when the land was sold, and whatever debt the latter might have against the estate would be subject to presentation and payment in the regular course of administration. In other words, whilst Stier’s obligation was one running personally in favor of the executors, plaintiff’s claim on the notes as against McWilliam was a claim against the estate.
It is, however, unnecessary to determine that question, because the money was paid by Stier to the executor of McWilliam before any request had been made to apply it on the notes.' We are aware of no rule in equity which would require the plaintiff, assuming, as we have done throughout, this discussion, that she was chargeable with the knowledge that her agent Stier had, to seize and appropriate the moneys due to the executors of McWilliam in payment
We think that the disposition made of the case at the trial was right, and the judgment should be affirmed, with costs.
Van Brunt, P. J., Patterson, Ingraham and McLaughlin, JJ., concurred.
Judgment affirmed, with costs.