Klinke v. Samuels

240 A.D. 1008

Opinion

Order granting defendant’s motion for leave to serve a supplemental answer reversed on the law and the facts, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. The defendant’s collateral engagement, an absolute guaranty, is a separate and independent contract involving duties and imposing responsibilities different from those created by the original contract. It may be enforced independently of the bond and mortgage to which it is collateral. The contract plaintiff sues upon is not a bond “ which is secured solely by such mortgage.” It does not come within the terms of section 1083-b or section 1083-a of the Civil Practice Act. Those sections do not impose any limitation on the rights of the plaintiff in respect of enforcing obligations owing under the guaranty. Enforcing that guaranty does not extinguish the indebtedness or the mortgage security. They continue in full force and effect, subject to the limitations imposed by sections 1083-a and 1083-b, defendant being subrogated to plaintiff’s rights in respect of them. (12 R. C. L. 1053, 1089; 28 C. J. 888, 895; Vanderbilt v. Schreyer, 91 N. Y. 392; Allen v. Rightmere, 20 Johns. 365; Winchell v. Doty, 15 Hun, 1; Barhydt v. Ellis, 45 N. Y. 107; Wood v. Tunnicliff, 74 id. 38.) Lazansky, P. J., Kapper, Hagarty, Carswell and Tompkins, JJ., concur.