
    Franz G. Matthiessen, Resp’t, v. G. N. Bartlett, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed March 15, 1895.)
    
    Parties—Necessary.
    Where plaintiff is induced to guarantee the payment of a loan, to secure which the borrowers had deposited certain railroad bonds with the lender, by the written agreement of the defendants that, in case he paid the loan, the defendants would be severally liable to him to the extent of the amounts-set opposite their names and would pay the same on presentation of a proportionate amount of the collateral bonds, and that each defendant cootracted for himself, and not for any other, and only for the amount set opposite his name, all the parties to the agreement are properly made parties defendant to an action on such agreement, after payment of the loan by the plaintiff.
    Appeal from an interlocutory judgment, overruling a demurrer to the complaint.
    
      J. G. Deane, for app’lt; M. W. Devine, for resp’t.
   Van Brunt, P. J.

The complaint in this action alleged that on the 22d of March, 1894, the defendants Goodwin and Swift procured a loan from the Western National Bank of the city of New York of $44,000, and as security for the payment thereof deposited forty-four first mortgage bonds of the Colonial City Electric Railway Company, of Kingston, N. Y., each for the sum of $1,000.; that the plaintiff guarantied the payment to said bank of said loan .at maturity; that, in order to induce the plaintiff to guaranty said loan, the defendants Bartlett, Swift, Orne, Abbott, Robinson, and Smith duly executed to the plaintiff their agreement in writing, wherein and whereby they agreed with the plaintiff, in amounts and proportion set opposite their .respective names, to severally guaranty the payment of said loan to the extent of said amounts,, respectively, in case the plaintiff, was required to pay said loan, and further agreed to pay to plaintiff the amounts so set opposite their respective nameso n demand and presentation of the proportionate amount of said collateral bonds; that the agreement further provided that each of said guarantors contracted for himself, and not for any other, and only for the amount set opposite his name; that opposite the name of the defendant Bartlett was the amount of $5,000, and various other sums opposite the name of the other-guarantors; and that, the loan of $44,000 to Goodwin and Swift-becoming due, the plaintiff paid the same to the said Western National Bank, and received the collateral security. The complaint further alleges that the plaintiff tendered to the defendant Bartlett bonds aggregation $5,000, the proportionate amount required to be tendered to him, and demanded from him the payment of said sum of $5,000, which was refused. The same allegation is made in regard to the other persons executing the contract of guaranty. Judgment was thereupon demanded that the plaintiff be subrogated to all the rights and liens of said Western National Bank in and to said bonds, and that it be adjudged that there is due from the defendant Bartlett to the plaintiff on account of his guaranty the sum of $5,000, with interest, and a similar demand is made as against the other defendants, and that the collateral security be sold at public auction, and the proceeds of five of said mortgage bonds be applied to the payment of said sum of $5,000, and that the plaintiff have judgment against said defendant Bartlett for any deficiency; and similar allegations are made as against the other defendants. The defendant Bartlett demurred upon the ground that causes of action are improperly united, and that the complaint did not state facts sufficient to constitute a cause of action. The first ground only is urged upon this appeal.

There would seem to be no doubt that the demurrer would have been well taken if there were any means of segregating the particular bonds in which the defendant Bartlett had an interest. But it appears that the bonds were treated as a body, and it cannot be said that the defendant Bartlett or the other defendants were entitled to receive any particular ones of these bonds; and, as a consequence, although the contract of guaranty may be a separate contract, yet the collateral security which followed that guaranty formed one security, in which these parties have an interest, in proportion to the amounts for which they were bound under their guaranty, in the sale of the bonds for the purpose of paying this loan. How would it be possible, if these various bonds brought different prices, to adjust the equities of the parties in this collateral security without the presence of all? It cannot be said that Bartlett is entitled to have the proceeds of the bonds first sold or of those last sold applied to the payment of his indebtedness, and the same is true as to the other defendants. Consequently it is necessary that there should be a marshaling of the proceeds of these bonds, and that they should be proportionately divided among these various guarantors.. There seems, therefore, to be no possible method in which the plaintiff could proceed, except by bringing in all the parties who are interested in these securities, selling the same for and on their account, and have the court marshal the proceeds, determine the equities between the parties, and the amount with which they are to be credited, and give judgment for a deficiency, if the plaintiff should be so entitled, as to each separately. llnder these circumstances we think the court below was right in overruling the demurrer, and the judgment should be affirmed, with costs, with leave, however, for the defendant to answer upon payment of the costs in the court below and of this All concur.  