Simon v. Davenport Estates, Inc.

283 A.D. 734, 127 N.Y.S.2d 440, 1954 N.Y. App. Div. LEXIS 5100

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 1954
• Status: Published

Opinion

In an action against a guarantor, appellant’s motion for summary judgment dismissing the first cause of action alleged against him in the amended complaint was denied. Order reversed on the law, with $10 costs and disbursements, and motion granted, without costs. There is no triable issue. The instrument of guarantee is clear and complete on its face, and its terms may not be varied or contradicted by additional evidence. The guarantor obligated himself to make refunds of moneys which the purchasers might deposit with the seller, in the event refund of such moneys became due under the terms of the contract. He did not guarantee performance of the contract nor obligate himself to pay the damage which the purchasers might suffer because the seller breached its contract. {M. H. Metal Produets Gorp. v. April, 251 N. Y. 146.) Adel, Wenzel, Beldoek and Murphy, JJ., concur; Nolan, P. J., dissents and votes to affirm the order for the reasons stated in the opinion at Special Term. (205 Misc. 374.)