Forsythe v. United States Fidelity & Guaranty Co. , 224 N.Y.S. 330 ( 1927 )

Frankenthaler, J.

This is a motion for summary judgment against a surety company in an action on a bond whereby the surety guaranteed the faithful performance of a contract. The transaction between the plaintiff and the principal involved the sale and delivery of certain merchandise, and the principal having failed to pay for the same it is sought to hold the surety liable. The answer contains a separate partial defense which pleads a failure to deliver to the principal some of the material under the contract and sets up a claim for damage in the sum of $2,546.51 as a credit against the amount due under the bond. In support of their motion plaintiffs urge that a separate defense of this nature is available only to the principal and not to the surety, citing cases in which defenses of fraud and breach of warranty have been held unavailing to a surety sued separately. But the instant defense involves a plea of failure of part of the consideration and challenges plaintiff’s right to recover in full on the ground of non-performance of all the obligations of the contract toward the principal. It cannot, therefore, be stricken out. On the other hand, the action is to recover $3,850 and the defendant’s partial defense involves a maximum credit of $2,546.51. There is no reason why plaintiffs should not have partial judgment for the difference and why the action should not be severed as to the claim of $2,546.51. Motion is granted to the extent indicated.