Opinion
February, 1906.
Wasserman Jacobus, for appellant.
Nathaniel Levy, for respondent.
The defendant Samuel Kahn was an accommodation indorser and the last indorser of the note in suit. Plaintiff entered judgment against the maker and the indorsers other than the defendant Samuel Kahn. One Silas Schwartz became one of the sureties on an undertaking given by the judgment debtors on appeal from said judgment and as such surety paid the amount of the judgment to the plaintiff.
Thereupon Schwartz became subrogated to the right of the plaintiff as against the judgment debtors whose debts he was compelled to pay, and he became entitled to enforce all appropriate remedies against said judgment debtors that might have been available to the plaintiff. Sheld. Sub., § 11; Smith v. National Surety Co., 28 Misc. 628.
But the defendant Samuel Kahn was not a judgment debtor when judgment was entered against the other defendants and Schwartz gave no undertaking in behalf of him. Schwartz was, therefore, in no position to assert any claim against Samuel Kahn by reason of his suretyship.
"As respects one another, indorsers are liable prima facie in the order in which they indorse". Neg. Inst. Law, § 118.
By section 201 (subdivision 4) of the Negotiable Instruments Law a valid tender of payment, made by a prior party, discharges one secondarily liable on the instrument.
In the case before us, the payment by Schwartz, as surety for the maker and prior indorsers, was a payment in their behalf which operated to discharge the note against the defendant Samuel Kahn.
There was no assignment of the notes or of plaintiff's claim to Schwartz shown and, indeed, if there were, the circumstances under which Schwartz claims to succeed to the rights of the plaintiff would simply establish a subrogation in favor of Schwartz as against the other defendants.
This action must be treated as though continued against Samuel Kahn by the plaintiff; and, as plaintiff concededly admits the payment of the notes, the judgment should be reversed and the complaint dismissed, with costs to appellant in this court and the court below.
GIEGERICH and SCOTT, JJ., concur.
Judgment reversed and complaint dismissed, with costs to appellant in this court and court below.