New Dorp Coal Corp. v. Frankel

257 A.D. 974, 13 N.Y.S.2d 89, 1939 N.Y. App. Div. LEXIS 8750

Opinion

Order granting plaintiff's motion for summary judgment and judgment entered thereon, and order on reargument adhering to the original decision, modified by striking out the provisions for the amounts for which judgment is directed against the appellants and for the issuance of execution thereon, and substituting in lieu thereof a provision for judgment in favor of the plaintiff and against each of the appellants in the sum of $5,000, with interest thereon computed from the date of the commencement of the action, together with costs and disbursements, and for the issuance of execution thereon; and, as so modified, the orders and judgment are unanimously affirmed, without costs. Under the contract of guaranty the liability of each appellant was limited to $5,000. After the default upon the bonds, their obligation to pay accrued upon plaintiff’s demand that they make payment of this sum pursuant to the guaranty. On this record it does not appear that any such demand was made upon appellants under their guaranty until the commencement of this action. On the contrary, it appears that the only demands which were made were upon the U. H, O. Holding Corporation and its officers to make the overdue payments on the corporation’s bonds. Lazansky, P. J., Hagarty, Carswell, Johnston and Taylor, JJ., concur. Settle order on notice.