Kratenstein v. Bikoff

127 A.D. 72, 111 N.Y.S. 250, 1908 N.Y. App. Div. LEXIS 1886

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 12, 1908
• Status: Published

Opinion

Woodward, J.:

The pleadings were oral, the plaintiff, seeking to recover upon a written guaranty. The answer generally denied the claim and urged want of consideration. The defendant’s . brother, Jacob Bikoff, is a contractor and builder. He. entered into a contract with the plaintiff for the plumbing work in two houses'on Staten Island. The contract price was $850. The-payments were to be made, $200 “ when the rough- iron and gas pipes are laid in and when the lead roughing is in; ” $300 “ when the wash-tubs, bathtubs and boilers are delivered and set.; ”. $350 “15 days after the ' completion of the work and certificate issued.” When the first payment of $200 was due it was paid; before the second payment became due (for-it is conceded that the tubs, boilers, etc., were not set, although they had beeii delivered), the plaintiff refused to go on with the work, complaining that lie was refused the second pay- • ment. After some delay Jacob Bikoff offered to- pay the plaintiff $200 in cash and to give him a -note for $450, and this was accepted by the plaintiff, who gave a receipt in full for the work, and agreed to complete the samé in eight days. This' transaction took place on the 9.th day of October, 1907, and although the. eight days passed, the plaintiff did not complete the work. Twenty days after Jacob Bikoff had given his note, for $450-to the plaintiff, and while the work was still uncompleted, the plaintiff went to ' the defendant, Jacob Bikoff’s brother, and the latter, after some conversation, gave the plaintiff the guaranty on which this action is based. It is not under seal; it recites no consideration; the plaintiff testified that no money consideration passed between them. It reads as follows:

“ Hew York, Oct. 2%th, 1907.

“ I, the undersigned, hereby guarantee the payment of a certain ' note made by J. Bikoff to David Kratenstein, dated Oct. 9th, 1907 and payable 60 days thereafter at the Mechanics and Traders’ Bank, Merchant’s Branch, provided and upon condition that David Kratenstein completes the buildings in Staten Island and furnishes a certificate of the building department of Richmond Borough that the plumbing in the said buildings are

* in good condition.

“ SAMUEL BIKOFF.”

The plaintiff, both under his written contract and under the receipt that he had given Jacob Bikoff at the time of receiving the note, was bound to complete the work and to furnish the certificate, so that there was no new consideration of any possible value in the performance of the proviso under which the defendant, had pro un ised to become liable. The guaranty was not given as an inducement to the acceptance of the note, for that had been accepted twenty days before, and we are wholly unable to discover any consideration for this guaranty. The guaranty was not to pay for the work upon the premises; it was to pay the note upon the condition that the plaintiff complete the work upon the premises arid produce the proper certificate. It was not shown that the defendant had any legal interest in the work which was being done, but, if he had, the guaranty was of the note, and that had already had its inception, and the plaintiff gave no consideration for the promise of the defendant to pay the note. The authorities cited in Vanderbilt v. Schreyer (91 N. Y. 392) as well as the doctrine of that case, seem to us conclusive upon this question, and the defendant having pleaded and established his defense, it was error to give judgment in favor of the plaintiff.

The judgment of the Municipal Court should be reversed.

Jenks, G-aynor,- Rics^and Miller, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.

Sic.