67 N.Y. 160 | NY | 1876
This is a motion for an order substituting the administrator of Abner Brown as defendant, he having died during the pendency of the appeal to this court.
The action was upon a joint promissory note made by the defendants, Abner Brown signing simply as surety. The principal interposed no defence. The action was tried before a referee, and the plaintiff recovered judgment, and judgment was entered against both defendants. Abner Brown alone appealed to the General Term of the Supreme Court, and there the judgment was affirmed. He then appealed to this court, and filed the usual undertaking providing for the payment of the judgment, if it was affirmed or the appeal dismissed. Pending the appeal, he died, and an administrator has been appointed upon his estate.
The substitution ought not to be made. It is the settled law of this State that upon the death of one of the makers of a joint promissory note, who was not liable for the debt irrespective of the joint obligation, but who signed the note simply as surety; his estate is absolutely discharged, both in law and equity (Getty v. Binsse,
But the claim is made that the giving of the undertaking upon the appeal altered the position of the surety, and imposed upon him an independent liability to pay the judgment in case of its affirmance; but the difficulty with this claim is that the judgment can never be properly affirmed. As the *162 judgment can never be enforced against the estate of the surety, there can be no propriety in substituting his administrator. As the estate is absolutely discharged from all liability upon the judgment, we should not continue the appeal simply for the purpose of enabling the plaintiff, in case of affirmance, to bring an action upon the undertaking. But it must be true that whatever discharges the estate of a surety in such a case from the judgment, also discharges it from the undertaking. There can be no liability upon the undertaking given, after the judgment has been destroyed or discharged, either by the act of the parties or the operation of law. It is quite inadmissible to construe the undertaking to mean that the surety would pay the judgment, even if he or his estate would, after the giving of the undertaking, be discharged from all liability upon the judgment.
The motion must be denied, without costs.
All concur.
Motion denied.