| N.Y. App. Div. | Dec 22, 1947
In this action based upon a guarantee in writing given by defendants to induce one Hermine Guidez, now deceased, represented in this action by the executors of the estate of the deceased, to purchase a $6,000 junior interest in a first mortgage of $28,000, order denying defendants’ motion to dismiss the complaint and for judgment upon the ground that the complaint does not state facts sufficient to constitute a cause of action, pursuant to subdivision 5 of rule 106 of the Rules of Civil Practice, and pursuant to subdivision 6 of rule 107 of the Rules of Civil Practice, on the ground that it appears upon the face of the complaint that the action is barred by the Statute of Limitations, reversed on the law, with $10 costs and disbursements, and the motion granted, with $10 costs. The guarantee consists of two separate and independent guarantees, the first of which was to pay at the times and in the manner according to the instrument, and the second, a guarantee to pay any deficiency resulting after a foreclosure of the mortgage guaranteed. We are of opinion that the extension of the mortgage at its maturity, without the consent of the guarantors, discharged their obligation under the guarantee and, further, that in any event the surrender of the security by the deceased to the Bank of New York in lieu of foreclosure carried with it an assignment of the guarantee to the bank. Hagarty, Acting P. J., Carswell, Johnston, Adel and Sneed, JJ., concur.