American Exchange National Bank v. Goubert

New York Supreme Court

American Exchange National Bank v. Goubert

67 Misc. 602, 124 N.Y.S. 817

DecidedMay 15, 1910

StatusPublished

This text of 67 Misc. 602 (American Exchange National Bank v. Goubert) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

American Exchange National Bank v. Goubert, 67 Misc. 602, 124 N.Y.S. 817 (N.Y. Super. Ct. 1910).

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Opinion

Bischoff, J.

So far as this action upon the undertaking proceeds for indemnity' for the plaintiff’s alleged loss through the prevention of the sale of the securities, the case has not been established, there being no proof that an actual loss resulted. The book value of the corporate assets as of December, 1906, disclosed a certain standard of the value of the stock, which value was slightly increased in December, 1907. The stock had no market value; and the mere fact that it sold at less than a price conforming to the 1906 and 1907 book value, when offered by the plaintiff at public [603]*603sale in April, 1908, affords no basis for the finding of an actual loss, since the standards of value thus compared are in no way similar.

While the undertaking is properly to be construed as given “ as security ” for the indebtedness therein referred to (American Exchange Nat. Bank v. Goubert, 135 App. Div. 371), there is nothing in the words used to support the finding that the application was to secure payment, as distinguished from collection of the debt. The undertaking is not to be construed in such manner as to extend the surety’s obligation beyond the necessary and reasonable meaning of the words employed; and, so construed, a guaranty of collection is all that this instrument imports. An additional and broader liability may not be read into the surety’s contract according to well-settled rules of construction. Brandt Surety, § 106. There is, however, no proof that the plaintiff has exhausted its ordinary legal remedies as to collection of the debt; and it results that the recovery must be restricted to the incidental damages proven for expenses of the litigation involved in the resistance of the injunction itself.

There should be judgment for the plaintiff for $250. Form of decision and judgment may be presented on notice of settlement.

Judgment accordingly.

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Bischoff, J.

So far as this action upon the undertaking proceeds for indemnity' for the plaintiff’s alleged loss through the prevention of the sale of the securities, the case has not been established, there being no proof that an actual loss resulted. The book value of the corporate assets as of December, 1906, disclosed a certain standard of the value of the stock, which value was slightly increased in December, 1907. The stock had no market value; and the mere fact that it sold at less than a price conforming to the 1906 and 1907 book value, when offered by the plaintiff at public [603]*603sale in April, 1908, affords no basis for the finding of an actual loss, since the standards of value thus compared are in no way similar.

While the undertaking is properly to be construed as given “ as security ” for the indebtedness therein referred to (American Exchange Nat. Bank v. Goubert, 135 App. Div. 371), there is nothing in the words used to support the finding that the application was to secure payment, as distinguished from collection of the debt. The undertaking is not to be construed in such manner as to extend the surety’s obligation beyond the necessary and reasonable meaning of the words employed; and, so construed, a guaranty of collection is all that this instrument imports. An additional and broader liability may not be read into the surety’s contract according to well-settled rules of construction. Brandt Surety, § 106. There is, however, no proof that the plaintiff has exhausted its ordinary legal remedies as to collection of the debt; and it results that the recovery must be restricted to the incidental damages proven for expenses of the litigation involved in the resistance of the injunction itself.

There should be judgment for the plaintiff for $250. Form of decision and judgment may be presented on notice of settlement.

Judgment accordingly.

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Bluebook (online)

67 Misc. 602, 124 N.Y.S. 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/american-exchange-national-bank-v-goubert-nysupct-1910.

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