Poster v. National Surety Co. , 234 A.D. 883 ( 1931 )

Judgment reversed upon the law, with costs to appellant, and complaint dismissed, with costs. We are of opinion that there is nothing uncertain or ambiguous about the undertaking in question. According to its terms, if the principal mentioned in the undertaking fails to pay the deficiency judgment, the surety company is bound to pay it to the extent of its agreement, namely, $15,000. The first paragraph of the undertaking is not a recital. It is an agreement for a specified lian bility, limited to the amount thereof. (Civ. Prae. Act, § 160.) Lazansky, P. J., Young and Kapper, JJ., concur; Hagarty and Tompkins, JJ., dissent and vote to affirm on the ground that the condition of the undertaking is to pay the “ deficiency judgment ” and that that condition is controlling over the preceding recital, and that it was the intention of the parties that the undertaking should cover any deficiency judgment. Findings of fact inconsistent herewith and the conclusion of law are reversed and new findings and a new conclusion will be made. Settle order on notice.