#### BENJAMIN S. TIFFANY, Appellant, *v.*GEORGE R. WILLIS, Respondent.

*Gua/raqity of collection*— *what laches of the creditor in cueing the debtor will release the guarantor.*

The complaint in this action alleged that on March 7,1875, one Cursen made his note for fifty dollars, payable to the defendant, or hearer, on the first day of April then next; that, at or about the same time the defendant guaranteed the collection of the note and transferred it for a valuable consideration; that subsequently the plaintiff became the owner and holder of the note so guaranteed; that on November 3, 1880, the plaintiff commenced an action against the maker in Orleans county and recovered a judgment therein upon which an execution was issued, and returned unsatisfied by the sheriff of that county on November 29, 1880. This action was commenced on the last named day. The note was dated at Ridgeway in Orleans county.

*Meld,*that the unexcused delay of five years and six months in bringing an action against the maker discharged the defendant from all liability *upon his*guaranty. That the complaint was properly dismissed upon the ground that it did not state facts sufficient to constitute a cause of action.

Appeal from a judgment in Orleans county, dismissing tbe plaintiff’s complaint, entered upon tbe trial of this action by tbe court without a jury.

Tbe court “ found as facts, tbe facts as stated in tbe complaint ” and that the action was commenced on the *29th*day of November,. 1880. As conclusions of law : 1. That tbe plaintiff is not entitled to' recover of defendant. 2. That tbe complaint be dismissed. TTpon plaintiff opening, tbe defendant moved that tbe complaint be dismissed *“*on tbe ground that it did not contain facts sufficient to constitute a cause of action, which motion of defendant was granted and plaintiff excepted.

*Hunt & Whedon,*for tbe appellant.

*Nelson A. Graves,*for tbe respondent.

Hardin, J.:

In tbe complaint it was averred that George Carson made bis note for fifty dollars,'March 7, 1875, payable on tbe first of tbe following April, and that it was payable to tbe defendant Willis, who, about tbe same time, executed a *guarcmty of the*collection thereof *267and transferred it, and tbe plaintiff became tbe owner of tbe note and guaranty, and that be, on tbe 3d of November, 1880, commenced an action in this court against tbe maker in Orleans county, and recovered a judgment tbereon tbe 26tb of November, 1880, and on that day issued an execution tbereon which was returned by tbe sheriff of Orleans county wholly unsatisfied on tbe • 29th of November, 1880, and it appears this action was thereupon on the last named day began.

Tbe note was set out and is dated at Bidgeway and that gives rise, with the issuing of execution to tbe sheriff of Orleans county, to tbe inference that tbe maker resided at its date and continued to reside in Orleans county for tbe five years and seven months succeeding tbe time when the note was due, and prior to any action by tbe bolder against tbe maker or guarantor.

Tbe answer of tbe defendant avers that tbe maker resided in Orleans county at tbe time of tbe execution of tbe note, and has since continued to reside there and that be might all that time have ' been sued “ by a personal serving of summons.” However, we do not intend to attach any importance to tbe averments of tbe answer. As tbe main question involved in tbe case is presented by tbe averments we have quoted from tbe complaint, and tbe finding of their, truth made by tbe trial court, we are of the opinión that tbe delay . of five years and six months in bringing an action against the maker of tbe note worked a discharge of tbe guarantor from the terms of bis guaranty of collection. *(Burt*v. *Horner,*5 Barb,, 501; *Vanderveer*v. *Wright*6 id., 547; *Mains*v. *Haight,*14 id., 76; *Penniman*v. *Hudson*Id., 579; *Craig*v. *Parkis,*40 N. Y., 181; *Northern Ins. Co.*v. *Wright,*76 id., 448; affirming decision made by this court, reported 13 Hun, 166, opinion by Talcott, J.)

Tbe obligation of tbe creditor, as a condition precedent to a right to recover of tbe guarantor, to prosecute within a reasonable time, was pointed out and asserted in *Newell*v. *Fowler*(23 Barb., 628) and in *Gallagher*v. *White*(31 id., 94) and in *Griffith*v. *Robertson*(15 Hun, 346). In *(Clark*v. *Sickler*(64 N. Y., 235), Church, J., recognized *Lewis*v. *Van Dusen*(25 Mich., 351), and says it was well decided, and puts bis approval of it upon the ground that there was a delay of two years, during which tbe maker became insolvent, and tbe guarantor of collection was held to be discharged.

*268As there was no dispute about the situation and circumstances of the parties, and no question as to the steps which have been taken or omitted by the guarantee against the principal debtor, the question of due diligence was a question of law. *(Burt*v. *Horner,*5 Barb., 501.)

The facts found in this case support the conclusion of law pronounced by the court, to wit, that the plaintiff had not made out a cause of action. *Clark*v. *Sickler (supra),*approves *Thompson*v. *Hall*(45 Barb., 214), where it was held that mere delay or indulgence would not discharge a surety or accommodation maker of a note. To the same purport is the case of *Second National Bank of Oswego*v. *Poucher*(56 N. Y., 348), where an indorser was held not to be discharged, though the creditor had persuaded the debtor not to pay the note in suit, but to apply his funds in payment of another debt held by . the creditor. The holder of a guaranty of collection stands ip a different position, and owes the guarantor the duty of diligence' in collecting of the principal debtor within a reasonable time. Nor does *Hunt*v. *Purdy*(82 N. Y., 490) aid the appellant. The defense relied upon to escape from a guaranty of payment of a mortgage, was that a notice had been given to the creditor to proceed and collect, and it was properly held that the burden of the defense was upon the defendant, and that *the notice*was *insuf*ficient, and that when sufficient notice had been given the burden is upon the defendant of showing that the failure to attempt to collect resulted in injury to the guarantor.

The judgment should be affirmed.

SMxth, P. J., and Malcombeb, J., concurred.

Judgment affirmed.