91 N.Y.S. 594 | N.Y. Sup. Ct. | 1904
It appears from the complaint that this action is brought upon a written guaranty, executed and delivered by the defendants to one Margowitz, a builder, in and by which the defendants promised and agreed to pay Margowitz the amount expressed in a certain building contract between him and a religious corporation for the erection of a synagogue, provided the corporation failed to pay him according to the terms of the contract. The defendants are members of the corporation. After the building contract and guaranty were executed and delivered, and before anything was done under the contract, Margowitz, “with the knowledge and consent ” of the corporation and of the defendants, for a good and valuable consideration, assigned the contract and guaranty to the plaintiff. The plaintiff proceeded with the work under the contract and finished the synagogue, and now claims that he is entitled to be paid a balance due upon the contract, payment of which has been refused. He brings this action upon the guaranty to recover this balance from the defendants. The defendants demur upon the ground that the complaint fails to state facts sufficient to constitute a cause of action. By its terms the guaranty is special in its scope, and guarantees payment only to Margowitz, the original contractor. By no fair construction can its effect be extended to include the plaintiff as assignee of Margowitz. It was not assignable, as no right of action thereon had arisen. Evansville Nat. Bank v. Kaufman, 93 N. Y. 273. The defendants are not liable to the plaintiff, even though they consented to the assignment' of' the guaranty. Their mere consent would not have the effect of making them so liable unless it was followed by a new written guaranty to the plaintiff, based on a new consideration. Evansville Nat. Bank v. Kaufman, supra. The complaint fails to disclose such a state of facts, and the demurrer is, therefore, sustained, with costs, with leave to serve an amended complaint within twenty days, upon payment of costa.
