8 Daly 272 | New York Court of Common Pleas | 1879
The defendant utterly failed to bring his case within the rule under which a surety is relieved by the neglect of the creditor to prosecute the collection of his demand against the principal debtor. There was no legal evidence that the principal debtor was solvent when the surety requested the creditor to sue, and that hé was insolvent afterwards. The case in the court below seemed to turn upon a supposititious state of affairs rather than upon the case made by the evidence. In Huffman v. Hulhert (13
But there was very slight evidence, if, indeed, there was any, that Moran subsequently became insolvent. Canavan swore that he did not know whether Moran was insolvent or not; he had recovered a judgment against Moran, but it did not appear that any execution was ever issued, and it may be that proceedings had been stayed by appeal, or by an order of the court. Insolvency is not to'be shown by such testimony as that. Upon exactly the same evidence men of great wealth in unencumbered land in this citvr could be proved insolvent. It was further proved that the claim in suit had not been paid, but that fact would not establish the
I think, moreover, that "Judge MacAdam properly decided that the words, “Go and get your money; there is enough to pay you,” did not amount to a notice that Canavan required Maier to sue Moran. The notice must be clear and unambiguous, and one not likely to be misapprehended by the creditor. It must apprise him that a resort to legal process is required of him by the surety. A collection of cases upon the subject may be found in Vol. 3, Wait’s Law of Action and Defences, pp. 235 and 236. Thus, it has been held that to say : “ I hope the note may be put in train for collection,” is not enough. Nor is a notice saying : “ I wish you to collect the debt from the principal,” sufficient. In our own State it has been decided that a request “to push and keep pushing ” the principal, did not import a request to bring an action against him. (Singer v. Troutman, 49 Barb. 182.) Of course the Avoids “go and get your money,” could not have conAreyed to Maier’s mind the idea that he Avas required to sue Moran Avithout delay. The surety is bound to make his meaning understood by using words that to a man of common understanding convey a request to sue. The defense failed in this respect.
It is said, hoAvever, that Maier accepted notes payable at a future day, and thus suspended his right of action against Moran. If the right of action against Moran was suspended for an hour Canavan is released. The law of Nbav York is not settled as to Avhether the taking of a note pa3rable at .a future da3r operates as a suspension of the right to sue on the original cause of action. In the Court of Appeals, as in the Supreme Court, there is no difficulty in finding decisions to sustain any view of the law that a suitor may wish to see prevail. Pratt v. Coman (37 N. Y. 440) and Place v. McIlvain (38 N. Y. 96) holds, that ac-: cepting a note pa3mble in future suspends the right of action on the original deht; Cary v. White (52 N. Y. 138) holds that it does not. In Hubbard v. Gurney (64 N. Y. 467), the Chief Judge says that there must be an agreement, either expressed
The judgment and order appealed from should be affirmed with costs, and judgment absolute rendered for the defendant. Leave to appeal to the Court of Appeals should be given if desired.
Charles P. Daly, Ch. J., concurred.
Ordered accordingly.