Fidelity & Casualty Co. v. Wells , 62 N.Y.S. 1066 ( 1900 )

RUMSEY, J.

It is not necessary for the plaintiff to rely upon section 534 of the Code of Civil Procedure to sustain this complaint It contains all the necessary allegations to make it good, without reference to that section. It alleges the making by Roehrig and the delivery to the plaintiff of six promissory notes, dated March 1, 1890, and the time that each note, by its terms, became due. It alleges that at the time of the execution and the delivery of these notes the defendant, for a valuable consideration, executed and delivered to the plaintiff a guaranty of the payment of said notes, setting out the guaranty in full. It alleges that there has been paid apon the fifth of said notes a certain sum, and that there remains unpaid and due upon it a certain sum, which it states. It alleges that the sixth of these notes has become due, and is unpaid, and it demands judgment for the amount of that note and the sum still due on the fifth note.

There is no doubt but that this complaint is good. It is said that the contract of guaranty was made in the state of Pennsylvania, but that does not necessarily appear in the complaint, and, if it did, it is of no importance. The guaranty as set out in the complaint is an absolute contract that the notes should be paid at maturity by the maker, and when he failed the plaintiff had a complete case against the guarantor. Brown v. Curtiss, 2 N. Y. 225. If, as is claimed by the defendant, the law of Pennsylvania differs in that regard from ours, no presumption to that effect exists; but that law must be alleged as a fact, and, until it is so alleged and proven, we must assume that this contract, wherever made, is to be construed under the rules of the common law as applied in the state of New York. Monroe v. Douglass, 5 N. Y. 447.

The judgment must be affirmed, with costs, with leave to the defendant to withdraw his demurrer and answer upon payment of costs in this court and in the court below within 20 days. All concur.