
    Annie Weisberg, Plaintiff, v. Michael Angelo Elias, Defendant.
    
    Supreme Court, New York County,
    February 19, 1930.
    
      Schneider & Groggins, for the plaintiff.
    
      Samuel Sturtz, for the defendant.
    
      
       Revd.., 230 Add. Div. 195.
    
   Churchill, J.

By the express language of the agreement defendant guaranteed payment of “ the installment due on the mortgage ” and further guaranteed “ payment of all subsequent installments of said mortgage and interest on their due dates.” The installment then due was the installment of $1,000, which had fallen due on February 1, 1927. It was later paid by defendant. "Subsequent installments were to be paid “on their due dates;” that is to say, $1.000 annually on February first for seven years. There could be no cause of action on the guaranty, therefore, until default in payment of the installment of February 1, 1928. But the possibility of such a default was destroyed by plaintiff’s election to foreclose the fnortgage before that installment became due. When plaintiff chose to pursue its foreclosure action to judgment and sale it necessarily destroyed all liability on the agreement of guaranty, for that agreement presupposed the continued existence of the mortgage upon which future installments might accrue. By the judgment and sale the mortgage was extinguished and plaintiff has procured a deficiency judgment, for the payment of which defendant has assumed no responsibility.

Under the stipulation a verdict is directed for defendant and an exception is allowed to plaintiff. Opinion filed.  