Becker v. Faber

254 A.D. 772, 4 N.Y.S.2d 765, 1938 N.Y. App. Div. LEXIS 7553

Opinion

Appeal by plaintiffs, holders of a bond and mortgage, from so much of a judgment as denies to them a deficiency judgment, if any there be after sale of the mortgaged premises, against the executors under the will of John A. Kolle, deceased, who had guaranteed the indebtedness. The Special Term has found that plaintiffs and the mortgagor modified the original agreement by reducing the interest rate and by accepting installment payments not provided in the agreement, and that the surety was discharged when the agreement, the terms of which he guaranteed, was modified. A guarantor or surety is bound by “ the strict letter or precise terms ” of the contract of the principal and is discharged when the agreement upon which the guarantee is based is modified without consent, even though such modification may not be prejudicial. (Ducher v. Rapp, 67 N. Y. 464; Antísdél v. Williamson, 165 id. 372; Katz v. Leblang, 243 App. Div. 421.) That doctrine may be harsh and inequitable, but it is not for this court to change it. Judgment, so far as appeal is taken, unanimously affirmed, with costs. Present — 'Davis, Johnston, Adel and Taylor, JJ.; Lazansky, P. J., not voting.