Weiss v. Leichter

113 N.Y.S. 999, 1909 N.Y. Misc. LEXIS 636

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 8, 1909
• Status: Published

Opinion

PER CURIAM.

Defendant guaranteed the performance by his son of the latter’s obligations under an agreement in the form of a lease of a moving picture apparatus by plaintiff to defendant’s said son. The latter defaulted in his payments, and plaintiff took back the apparatus, and sued defendant on the guaranty. The agreement between plaintiff and defendant’s son contained an option to the latter for the purchase by him of the machine for $203, the total amount of all rental dues, upon full payment of such dues, and the contract must be regarded as a conditional sale, with title remaining in plaintiff until full payment had been made to the plaintiff. Hoffman v. White Sewing Mach. Co., 123 App. Div. 166, 108 N. Y. Supp. 253; Puffer v. Reeve, 35 Hun, 480; Equitable General Providing Co. v. Eisentrager, 31 Misc. Rep. 707, 35 N. Y. Supp. 296; Equitable General Providing Co. v. Potter, 22 Misc. Rep. 124, 48 N. Y. Supp. 647.

• For the rent or installments that had already accrued before the return of the apparatus to plaintiff by the defendant’s son, the former may perhaps have a cause of action against the latter; but he cannot maintain this action against the guarantor, for the reason that he admits that he made several material alterations in the contract between himself and defendant’s son, subsequent to the making of the guaranty, without the knowledge or consent of the guarantor. It is a well-settled rule that a guarantor or surety is discharged by any alteration of the contract to which his guaranty applied, whether material or not and whether or not the alteration is to his injury. Antisdel v. Williamson, 165 N. Y. 372, 59 N. E. 207.

The judgment must be reversed, and, as plaintiff admits the alteration, the complaint is dismissed, with costs to the appellant.

Judgment reversed, and complaint dismissed, with costs to the appellant.