#### Mary Meade, Respondent, *v.*John E. Liederman, Appellant.

(Supreme Court, Appellate Term, First Department,

November, 1912.)

Guaranty — payment of taxes — agreement to extend second mortgage — default.

Where defendant gave to plaintiff, the holder of a second mortgage on certain premises, his written guaranty of the payment of taxes for a specified year, a provision therein by which defendant agreed to relieve plaintiff from her obligation to extend the time for payment of said mortgage, if he defaulted in payment of taxes, did not release him from the obligation which it was the purpose of his guaranty he should assume.

In the event of the failure of the owner of the premises to pay the taxes, defendant’s obligation to pay them was unconditional; and, .in case of his default, plaintiff as matter of law had a right to sue upon the guaranty.

Appeal by the, defendant from a judgment of the Municipal- Court of the city of Mew York, borough of the Bronx, second district, rendered in favor of the plaintiff after a trial before the court without a jury.

Ehgel Brothers (Isadore Schneider, of counsel), for appellant.

John R. Jones, for respondent.

Seabury, J.

The plaintiff brings this action upon a written instrument signed and delivered to her by the defendant, of which the following is a copy:

> “For and in consideration of the sum of One ($1.00) Dollar and other good and valuable considerations to me *143in hand paid by Mary Meade, of Yew York City, the receipt whereof is hereby acknowledged, I, John E. Leidérman, of Yew York City, do hereby guarantee unto the said Mary Meade, or her assignee, the payment of the 1911 land taxes amounting to $129.18 (exclusive of interest) by the owner or owners of premises Yo. 356 East 145th Street, Yew York City, in which I am now interested, on or before March 15th, 1912. In the event of my failure to so pay the same on or before said date, said Mary Meade is hereby released from her obligation to me heretofore- made for the extension of the second mortgage of $3,000 covering premises Yo. 519 West 27th Street, Yew York City.

> “ Dated Yew York February 7th, 1912.

> “John E. Liedebman.”

At the time this instrument was executed, the plaintiff was the owner of a second mortgage of $2,250 on the premises Yo. 356 East One Hundred and Forty-fifth street, which was to become due and payable in October, 1912, and contained a provision that the whole amount of the principal sum thereof should become due at the option of the plaintiff, as mortgagee, after default in the payment of any tax imposed upon the premises covered thereby for twenty days after notice and demand. The defendant gave the instrument quoted above in consideration of the plaintiff’s agreement to refrain from foreclosing the mortgage upon said premises. The taxes were not paid before March '15, 1912, and were subsequently paid by this plaintiff. The appellant contends that, under this instrument of guaranty, the only remedy secured to the plaintiff, in the event of the failure of the defendant to pay the taxes, was that she was released from her obligation to extend a second mortgage which plaintiff held upon other premises in which defendant was interested. We do not think that such an interpretation can reasonably be put upon the instrument in question. As we read it, it deals with two subjects. The first has to do with the taxes upon the One Hundred and Forty-fifth street property. These, the defendant agrees, in language unambiguous, to pay. The second subject dealt with in this *144instrument is contained in the last clause. Here it is made evident that the plaintiff was, at the time of the making and delivery of the guaranty, obligated to the defendant guarantor to extend a mortgage which she then held upon property in Twenty-seventh street. In addition to agreeing to pay the taxes on the One Hundred and Forty-fifth street property, the defendant agrees to relieve the plaintiff from, her obligation to extend the mortgage on the Twenty-seventh street property, if he defaults in the payment of taxes upon the property in One Hundred and Forty-fifth street. This last clause was intended to release the plaintiff from her obligation to extend the mortgage on the Twenty-seventh street property, and not to release the defendant from the obligation which it was the very purpose of this agreement of guaranty that he should assume. In the event of the failure of the owner to pay the taxes, the defendant obligated himself to pay them. This obligation was unconditional. If he defaulted in this obligation, it followed, as a matter of course, that he could be sued upon it. It was unnecessary for the instrument so to provide, because such was its evident purpose. The plaintiff had the right to sue, as a matter of law, and therefore the right need not be specifically expressed. In addition to this, if the defendant did not keep his obligation as guarantor and pay the taxes on the One Hundred and Forty-fifth street property, that fact furnished a very good reason why the plaintiff should insist upon being released from the obligation which she was then under to the defendant, to extend the mortgage on the Twenty-seventh street property. When the instrument is read in the light of the circumstances of the parties and the relation which they sustained to one another, we think that it is only susceptible of the interpretation which we have placed upon it.

It follows that- the judgment recovered in favor of the plaintiff should be affirmed, with costs.

Guy and Bijur, JJ., concur.

Judgment affirmed, with costs.