#### Philip H. Lehnen, Resp’t, *v.*Alfred J. Purvis *et al.,*App’lts.

*(Supreme Court, General Term, Fourth Department,*

*Filed February 15, 1890.)*

Pleading—Demubbeb.

The complaint alleged the giving by W. and K. of a bond for the performance of a contract, on which Purvis was surety, and a breach of the condition thereof. It also alleged that W. assigned his interest to K. and was released, and that Purvis assented to the assignment and agreed that his obligation as surety should continue to be the same for K. as it was for W. and K. On demurrer, *Held,*that the complaint stated but one cause of action, viz.: for breach of condition of the bond.

*780Appeal from a judgment entered in Onondaga county on the 20th of June, 1889, and the appellant brings, up for review on such appeal an order entered in the clerk’s office of Onondaga county June 20, 1889, overruling a demurrer to plaintiff’s complaint and granting leave to the defendants to answer on payment of costs of the demurrer. The demurrer was on the following grounds:

*“First.*That there is a defect of parties defendant in this action in that the said Purvis is not a necessary or proper party to be joined as a defendant with said Kilian in an action upon the contract or agreement set forth in the said amended complaint.

“ *Second.*That causes of action have been improperly united, viz.: One cause of action in said amended complaint being an alleged cause of action against said defendant, Purvis, and said defendant, Kilian, uppn the bond set forth in said amended complaint, and the other cause of action in said amended complaint being an alleged cause of action against said defendant, Purvis, alone upon the contract or agreement set forth in said amended complaint

*Third.*That the amended complaint does not state any or a cause of action in favor of said plaintiff against said defendant, Purvis.

*Fourth.*That the amended complaint does not state facts sufficient to constitute a cause of action either against the said defendant, Purvis, alone, or against said defendant, Purvis, impleaded with the said defendant, Kilian.”

*W. & N. F. Fernán,*for app’lts; *Samuel B. Stern,*for resp’t.

Hardin, P. J.

The complaint contains facts sufficient to constitute a cause of action for a breach of the bond set out in the complaint against the defendants, Kilian and Purvis.

Kilian and Purvis, by the terms of the bond executed on the 23d of April, 1885, were jointly and severally liable to the plaintiff for the non-performance of all the conditions contained in the contract referred to in the bond.

The complaint contains an averment that on the 20th of October, 1885, the plaintiff and defendants entered into an agreement whereby Westcott was to be released of all obligation on account of the bond, or on account of the contract mentioned in the bond, he having transferred his interest in the contract to Kilian, who assumed the performance of the same in accordance with the stipulation theretofore existing against Westcott, and on that day Purvis undertook to become surety for Kilian, and it is averred in the complaint that Purvis consented to the assignment to Kilian, “ and agreed that his obligation of surety in said bond for the per-, formance of said contract should continue to be the same for said Kilian as it was for said Westcott and Kilian.” •

If the last allegation be true, then he continued jointly and severally liable upon the bond to the plaintiff for the performance of the contract mentioned in the bond.

The complaint contains an averment of a breach of the contract and a breach of the condition of the bond.

*781It is also averred in the complaint that “ the said Purvis consented to said assignment to said Kilian, and agreed that his obligation of surety in said bond for the performance of said contract should continue to be the same for said Kilian as it was for said Westcott and Kilianthus, the words of the bond, “ we bind ourselves, and our heirs, executors and administrators, jointly and severally, firmly by these presents,” remained operative against Kilian and Purvis, and the bond continued to be the foundation of their liability, and, as already stated, they were jointly and severally liable in virtue of the terms of the bond. It is stated that there was a breach of the conditions of the contract mentioned in the bond; hence there was a breach of the conditions of the bond, and for such a breach this action is brought.

*Barton*v. *Speis,*5 Hun, 61, is distinguishable from the case in hand; there the plaintiff sought to unite a cause of action against the maker of a note with a cause of action against the guarantor of a note, and it was held that the liability of the maker of the note was in virtue of one instrument and the liability of the guarantor in virtue of another instrument, and, therefore, the causes of action were improperly united.

In *Harris*v. *Eldridge,*5 Abb. N. C., 278, the action was against the maker of a note, and also against a guarantor of a note, and the court followed *Barton*v. *Speis,*holding that there was an improper joinder of causes of action. If this complaint united two causes of action in the same count, it would be demurrable. *Wiles*v. Suydam, 64 N. Y., 173; *Goldberg*v. *Utley,*60 id., 427. But, as already stated, we are of' the opinion that but one cause of action is stated, to-wit: Liability of the defendants by reason of a breach in the condition of their bond, and certain facts are stated for the purpose of showing that they continued that liability, notwithstanding Westcott had assigned his interest in the contract to Kilian.

We think the demurrer was properly overruled at the special term.

Judgment affirmed, with costs, with leave to the defendants to withdraw their demurrer on payment of the costs of the demurrer and of this appeal, and answer on payment of such costs within twenty days.

Martin, J., concurs; Merwin, J., not sitting.