206 N.Y. 637 | NY | 1912
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *639 The claim of the appellant as stated in its brief is that "The appellant stood as surety to Kratenstein and Weinstein and was entitled to be subrogated, on payment, to their lien and to all collateral thereto, and when they put it out of their power to assign their claim against Silverstein, they so impaired the appellant's right of subrogation as to subordinate their lien."
The appellant, to sustain its claim that the lien of Kratenstein and Weinstein should be subordinated to its mortgages, relies upon the decision in Barnes v. Mott
(
The court, in that case, say: "The doctrine of subrogation or substitution, at first applied in behalf of those who were bound by the original security with the principal debtor, has been greatly extended, and the principle, modified to meet the circumstances of cases as they have arisen, has been applied in favor of volunteers intervening subsequent to the original obligation, and as between different classes of sureties, and in the marshaling of assets, and prescribing the order in which property and funds shall be subjected to the discharge of different classes of obligations, and as between different classes of creditors, so as to do substantial justice and equity in each case." (p. 401.)
The parties in the case now before us occupy in equity a position that is the reverse of the position of the parties in the Barnes case. Silverstein, who was primarily liable to Kratenstein and Weinstein upon the contract made by him with them for labor to be performed and materials to be furnished upon and toward the erection of said buildings, provided in his deed to the Little Giant Company that said company pay all the claims for materials furnished and labor performed upon and toward the erection of said buildings, and that company thereby became as between Silverstein and such company the primary and principal debtor, and Silverstein thereafter occupied as between them the position of a surety. (Howard v. Robbins,
The execution and delivery of the release, therefore, in no way affects the rights of the Lawyers Title Insurance and Trust Company.
The principle contended for by the appellant is not applicable to the facts in this case.
The judgment should be affirmed, with costs.
CULLEN, Ch. J., GRAY, WILLARD BARTLETT, HISCOCK and COLLIN, JJ., concur; VANN, J., absent.
Judgment affirmed.