Russell v. Weinberg , 4 Abb. N. Cas. 139 ( 1878 )

Neilson, Ch. J.

I am of opinion that the judgment appealed from should be affirmed.

The opinion of the learned judge before whom the case was tried, is sufficiently full and clear to justify that disposition of the case.

But since that opinion was written, the case of Col-grove v. Tallman, determined in the court of appeals, has been reported (67 N. Y. 95), and disposes of the only question of importance raised on the hearing.

The general principle recognized in courts of equity, which for the protection of a surety accepted as such by the creditor, made it the duty of the creditor to proceed against the principal debtor to enforce the claim upon the request of the surety, has been well accepted and frequently applied.

But on the argument before us, the learned counsel for the appellant contended that that principle cannot be applied to a case of this character, or indeed to any case, where, at the instance of the principal debtor, and without the creditor’s knowledge or consent, a third person had accepted a relation to the property, and agreed to pay the debt.

It is sufficient to say that the case above cited fully meets and disposes of that objection.

As to the other branch of the case, the evidence was sufficient not only to show the request that the creditor should proceed to enforce his claim as he might have done, but the loss and damage which had been suffered, in consequence of his having neglected to do so..

The judgment should be affirmed with costs.

McCue, J., concurred.