100 Parkway Road, Inc. v. Johns-Manville, Inc.

258 A.D. 736, 14 N.Y.S.2d 830, 1939 N.Y. App. Div. LEXIS 6704

Opinion

In an action upon a contract of guaranty, tried upon stipulated facts, defendant appeals from a judgment rendered by the County Court of Westchester county in favor of the plaintiff. Judgment reversed on the law and complaint dismissed, without costs, but with printing disbursements to the appellant. The obligation of the defendant under the contract of guaranty is strictissimi juris, The stipulated facts show such an alteration and change in the subject-matter of the “ Maintenance Agreement,” performance of the terms of which by the principal obligor was guaranteed by the defendant, as in law discharged the defendant from its obligations. Further, upon the stipulated facts, recovery for the breach of the maintenance agreement could not have been had by the plaintiff against the principal obligor. As the defendant’s obligation as surety is secondary, no recovery against it may be had. Lazansky, P. J., Johnston, Adel and Taylor, JJ., concur; Carswell, J., concurs in result.