39 Barb. 174 | N.Y. Sup. Ct. | 1863
By the Court,
This action was brought to recover the sum of $578.50 for gas supplied one H. S. Crocker from the 20th of January, 1860, to the 18th of February, 1860, and for rent of meter during that time. This action was brought against the defendant as surety. The complaint alleges that Crocker applied to the plaintiffs to be supplied with gas light and meter; that his application was in the following words : “ To the Manhattan Gas Light Company. The subscriber wishes to be supplied with gas light . and meter in the premises No. — Gramercy Park street, occupied as the Gramercy Park House, and hereby agrees to pay for the same on the usual terms of the company. Succeeds Mr. Davis from this date. H. S. Crocker. Charles Ely, surety. Hew Tork, February 18th, 1856.” And that thereby the said Charles Ely became and was surety for the payment by the said H. S. Crocker for all sums which might be due and owing by him for gas light and meter furnished pursuant thereto.. The answer insists upon the statute of frauds as a
On the facts found, it is clear that the referee came to the correct conclusion. The first ground or reason stated by the referee for this conclusion was sufficient to authorize it. By signing the written instrument set out in the complaint as surety, the defendant undertook to pay for gas and meter supplied to Crocker at the Gramercy Park House, if Crocker did not pay. He did not undertake to pay for gas furnished to Woodhuli, or to any other person than Crocker. The gas furnished for the Gramercy Park House during the time mentioned in thé complaint was, in fact, furnished to Woodhuli, as the landlord or proprietor of the house. It is immaterial in this case, between the plaintiffs and the surety, whether the /plaintiffs had notice of the change in the proprietorship of the house or hotel, or whether, as between the plaintiffs and Crock-er, on the facts found by the referee, Crocker would be liable, on the ground that he did not give notice to the plaintiffs of the change of proprietorship; inasmuch as by no reasonable construction of the defendant’s undertaking as surety, could he be held responsible for any default of Crocker in not giving such notice. The undertaking of the defendant as surety was, to be responsible for any default of Crocker, in not paying for the gas furnished him. He did not undertake to be responsible for any default of Crocker in not giving notice of any change of the proprietorship of the hotel. The referee did
Sutherland, Ingraham and Clerke, Justices.]
I think the judgment should be affirmed on the ground above stated aleño.