103 A.D. 195 | N.Y. App. Div. | 1905
Tbe defendants are guarantors of tbe performance of a contract whereby one Morris Margovitz agreed to complete for a religious corporation called “ Chebra Chai Odom Anshi Minsk,” all work on tbe bouse and synagogue of that corporation in Henry street, in the city of New York, according to plans and specifications made by an architect. Tbe guaranty of tbe defendants is in tbe following words: “ For and in consideration of the sum of One Dollar and other good and valuable consideration, we, the undersigned, members of the Congregation Chebra Chai Odom Anshi Minsk, hereby
The guaranty was signed by all of the defendants and was acknowledged before a notary public on the 12tli day of August, 1901. It is alleged in the complaint that thereafter and on or about the 19th of August, 1901, and before Morris Margovitz had done any work or furnished any materials under said contract, and with the knowledge and consent of the religious corporation and the defendants, the said Morris Margovitz for a good and valuable consideration duly assigned, transferred and set over to the plaintiff the said contract and guaranty, together with all his right, title and interest therein ; and that the plaintiff duly furnished all the materials and work required by the contract, except certain minor details which were expressly waived both by the religious corporation and the defendants, and the religions corporation and the defendants accepted and adopted the work done and the materials furnished by the plaintiff as a full and complete compliance with and performance of "said contract; that the plaintiff did not obtain a certificate of the architect for the reason that the religious corporation and the defendants waived such requirements as to payments and as to the balance remaining due on the contract, and that the plaintiff demanded the certificate from the architect, but said architect unjustly and wrongfully refused to give it; that there was a balance due on the contract of $4,050, and judgment was demanded for that amount.
The guaranty is one of payment, and being such the action is maintainable without proceeding against the principal debtor. (McMurray v. Noyes, 72 N. Y. 523.) The defendants demurred
The decision of the court below is based upon the assumption that the guaranty was special in its scope and the guarantors only bound themselves to Margovitz, the original contractor; that it was not assignable, as no right of action had arisen thereon; that, although it is stated in the complaint that the assignment of the guaranty was with the consent of the defendants, such consent would not create a liability unless it were followed by a new written guaranty to the plaintiff, based on a new consideration, and in support of the last proposition the case of Evansville Nat. Bank v. Kaufmann (93 N. Y. 273) is cited. It is not to be controverted that where a special guaranty contemplates a trust in the person to whom it is addressed and no cause of áction arises thereon, except upon compliance with its condition by such person, no other person can accept its terms or acquire any advantage therefrom. The court below erred in assuming that this was a case of a special guaranty given because of trust or confidence reposed in Margovitz. It is a mere builder’s contract, and that the guaranty was not special is shown by the fact that before Margovitz did anything whatever under the contract it was assigned to the plaintiff with the consent of the defendants. It is assumed by the court below that the consent given was not followed by a new written guaranty to the plaintiff. If that is at all material, in view of the nature of the guaranty, the complaint is sufficient, for it alleges that, with the knowledge and consent of the defendants, Margovitz, for good and valuable consideration, duly assigned the guaranty. “Duly,” in legal parlance, means “ according to law.” It does not relate to form merely, but includes both form and substance. (Brownell v. Town of Greenwich, 114 N. Y. 527.) The allegation is sufficient to show that whatever was necessary to constitute a valid assignment was done. But we are of the opinion that the assignment of the original contract carried with it an assignment of the guaranty. Not being a special guaranty that result was operated. The writing states that the defendants severally and jointly undertook and guaranteed the payment of $7,000 for the completion of a synagogue and other work, pursuant to contract.
The interlocutory judgment should be reversed and the demurrer overruled, with costs, with leave to the defendants to withdraw demurrer and to answer the complaint within twenty days from the service of the order to be entered on this decision and on the payment of costs in this court and in the court below.
Van Brunt, B. J., Ingraham, McLaughlin and Laughlin, J J., concurred.
Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendants to withdraw demurrer and to answer ' on payment of costs in this court and in the court below.