Hurley v. Pittsburgh Plate Glass Co.

178 A.D. 927

Opinion

Judgment reversed, and upon new findings by this court, plaintiff decreed to recover for value of his collateral applied by defendant after it had satisfied its mechanic’s lien. Having filed a lien for $1,479.90, such lien became security for this debt, although the debtor had then become bankrupt and the plaintiff as guarantor, in ignorance of this hen, had after-wards advanced other collateral. In this suit defendant had the burden of justifying a discharge of its Hen for only $656.90, since this rendered valueless the Hen to which plaintiff had a right to be subrogated. (Guild v. Butler, 127 Mass. 386, 390.) Under familiar equitable principles, a surety can recover back eoHeetions from his property after he has learned that the creditor’s acts have discharged his H’abiHty. (Chester v. Kingston Bank, 17 Barb. 271; 16 N. Y. 336.) Plaintiff, therefore, is entitled to repayment of the $1,022.68 coHected from his assigned security, with interest and costs in both courts. Jenks, P. J., Thomas, Mills, Rich and Putnam, JJ., concurred. Order to be settled with findings, on" notice before Mr. Justice Putnam.