Fischer v. Mahland
Appellate Division of the Supreme Court of the State of New York
Appeal by the plaintiff, Rudolph Fischer, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of November, 1919, overruling plaintiff’s demurrers to six separate defenses, one being also a counterclaim.
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Appeal by the plaintiff, Rudolph Fischer, from an order of the Supreme Court, made at the Kings County Special Term and entered in the office of the clerk of the county of Kings on the 22d day of November, 1919, overruling plaintiff’s demurrers to six separate defenses, one being also a counterclaim. The complaint was for $8,265.65. It set out that plaintiff’s assignors, the firm of Knauth, Nachod & Kuhne, had advanced $25,000 (against which the Interboro Brewing Company had repaid $16,734.35) in reliance upon the defendant’s agreement of April 16, 1915, as follows: “ Please make advances…
1Opinion of the Court
Putnam, J.:
This demurrer calls on us to pass on the legal effect of the paper in suit. Its terms, especially the signer’s joint and several liability in conjunction with the brewing company, so plainly assumed, make the obligation original and direct as of a party to the primary undertaking. Hence it is not strictly a guaranty which must be collateral, secondary and subsidiary to another’s obligation. But though defendant took on himself the place of a co-obliger, still he may be a surety. The foundation of this liability is advances to and for account of the brewing company, which as…
2Cases cited2 opinions
- Wilson v. WebberNew York Supreme Court · 1895
- Wilson v. . Webber, TrevorNew York Court of Appeals · 1898
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- In re the Estate of WaldmanAppellate Division of the Supreme Court of the State of New York · 1969
- Bankers Trust Co. v. BerensNew York Supreme Court · 1943
- Chemical Bank v. MeltzerAppellate Division of the Supreme Court of the State of New York · 1997
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