Kennedy v. . Goss

38 N.Y. 330, 7 Trans. App. 277

• Court: New York Court of Appeals
• Decided: June 5, 1868
• Status: Published

Opinions

By the giving of time to Sherman, the principal debtors, Moses and Greenman, were not released from their liability to the plaintiff; they were absolutely bound to him for the debt. True, Sherman had become bound to them, that Tuttle should pay it, but the plaintiff's agreement, if it be regarded as giving time to Sherman to perform his duty to Moses and Greenman, did not operate to discharge them, whether Kennedy had knowledge of Sherman's previous undertaking or not.

It follows, that, when the period of extension had expired, Moses and Greenman remained liable to the plaintiff. Sherman had not paid the debt.

The defendant had become bound to them, that Sherman should perform his undertaking, and Sherman had not done so. Thereupon, a clear liability of the defendant to Moses and Greenman arose, which they could enforce. The debt was not paid. Nothing had been done which could operate to release them. They had done nothing which could operate to release Goss, the defendant, from his obligation to them, that the debt should be paid.

Kennedy, the plaintiff, could maintain his action against them, and compel payment. They, in turn, could maintain their action against this defendant, and recover from him that which he had agreed Sherman should pay for them.

In this relation between them and this defendant, Goss, it was entirely competent to them to assign to Kennedy, the actual creditor, their right to pursue this defendant, surety to them, and they have done so.

On this ground I concur in affirming the judgment.

MASON, J., concurs in this view of the case, and places his vote solely upon this ground.