Opinion
November 23, 1965
MEMORANDUM BY THE COURT. In Action No. 1 a creditor sued the guarantor alone upon a written contract of guarantee. We agree with Special Term that the independent claim which the principal elected to assert in a separate suit against the creditor for its alleged negligence in the performance of the service provisions of the contract for the sale and delivery of poultry feed and supplies was not available to the guarantor either as a defense or a setoff against the plaintiff. (See Gillespie v. Torrance, 25 N.Y. 306; Elliott v. Brady, 192 N.Y. 221; Ettlinger v. National Sur. Co., 221 N.Y. 467.) No cross appeal having been taken from the order denying the cross motion for the consolidation of the two actions, we are limited to a consideration of the relief granted by the judgment. Judgment and order appealed from affirmed, with costs. Gibson, P.J., Herlihy, Reynolds, Taylor and Aulisi, JJ., concur.