95 N.Y.S. 1034 | N.Y. App. Div. | 1905
Each of these actions is brought against the defendant as surety on a bond of indemnity given to the plaintiff by-the Houston Oil Company as principal and the defendant as surety conditioned for the payment of the actual damages sustained by the plaintiff-Hot exceeding the sum of $100 by a breach of the charter party executed between the plaintiff and said oil company as charterer of a steamship which, according to the contract, was to be converted into an oil. tank by the plaintiff within a specified time and then delivered to the charterer. The defendant set up as a separate defense that the terms of the contract with respect to the time given to the plaintiff for converting the steamer into an oil tank was changed by an agreement between the plaintiff and the oil company without 'the knowledge or consent of the surety. The plaintiff, contending that the alteration of the contract by which the time for the commencement' of the five-year charter period was postponed was immaterial and not prejudicial to the surety and that the strict rule under which any change in a contract, even though immaterial, made without the consent of the- surety discharges him was not applicable, demurréd to the defense.- This court, however,, overruled the demurrer (104 App. Div, 347).' The learned counsel for the .plaintiff thereupon moved for leave to serve an amended complaint, alleging that the defendant was engaged in the business of executing, such bonds and undertakings for hire and that it executed the bond in ¿question for a valuable consideration received by it theréfor. The amend
It follows that the order in each case should be affirmed, with ten dollars costs and disbursements.
O’Brien, P. J„ Patterson, Ingraham and McLaughlin, JJ., concurred.
Order affirmed, with ten dollars costs and disbursements.