
    William Burfeind, Respondent, v. People's Surety Company of New York, Appellant.
    Second Department,
    July 29, 1910.
    Principal and surety — acquiescence in delay by contractor — when surety not discharged.
    If-an obligee by a valid and binding agreement made without the assent of a surety gives to the principal further time for performance of a contract, the surety is discharged.
    But- a mere delay in enforcing the liability of the principal will not discharge the surety, at least if there be no notice to the obligee to take legal proceedings to enforce the liability. And'moreover, an agreement which in form gives further timé for the performance of a contract must-be valid and enforcible in order to discharge the surety.
    .Thus, a surety is not discharged where'the obligee while silently acquiescing in - a. slight delay by the contractor in performance made no express waiver of any breach of the contract.
    Appeal by the defendant, the Pep pie’s Surety Company of New York, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the llih day of June, 1909, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 14th day of June, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      F. Sidney Williams [Edward M. Grout and Paul Grout with him on the brief], for the appellant.
    
      Ernest G. Stevens [ William O. Gantz with him on the brief], for the respondent.
   Burr, J.:

On May 22, 1907, the Hudson River Concrete Company, plaintiff's assignor, and one Seligman, entered into a contract which related to filling, regulating and grading East Twenty-sixth street, between Avenue D and Clarendon road, and to the laying of concrete sidewalk and curb. Concurrently therewith a bond was executed by Seligman as principal, and appellant as surety, for the faithful performance of the conditions and covenants of said contract on Seligman’s part. This action is brought upon said bond. The contract provided that a portion of the work should be completed within twenty working days from the date of the' contract, and that it should all be completed within a reasonable time, not. later than July 15, 1907. The complaint alleges fuff performance of the contract on the part of the concrete company, except that completion of the work was delayed until August fourteenth by the fault of said Seligman. Appellant pleads a general denial, with no affirmative defenses.

There is abundant evidence that the work was properly done, so far as the character and quality of it were concerned. The city inspector, called as a witness for defendant, so testified. His only objection to it was that the concreting was to be placed upon new fill, and under such circumstances there would be some sinking and cracking. But the putting of concrete on this new fill was the very thing that the parties to the contract agreed should be done. The portion of the work that was to be done within twenty days was substantially completed on June twenty-sixth, and the entire contract was substantially completed on August seventh; although there was some little work that was not done until August fourteenth. There is also abundant evidence that the delay in the prosecution of the work was due to the act of Seligman in obstructing the street, and also because, in the first instance, the city inspector refused to allow either of the parties to the contract to do that which they had agreed to do, viz., put concrete sidewalk and curb Upon a new fill. There is also uncontradicted evidence of some delay on the part of the carriers in delivering gravel, which was, within the terms of the contract, to be furnished by Seligman. The jury were justified in finding that the plaintiff was in no wise responsible for this delay, but the fault, so far as it was a fault, was that of Seligman or his employees.

The only exceptions in the case which require consideration relate to the charge. In the main charge the court said: “ He [referring to the concrete company] must satisfy you by evidence that he complied faithfully with every requirement of the contract except as to time, and as to that he had to do it in time unless he satisfies you- that was waived by Seligman, or that the performance in time was interfered with by Seligman.” At the close of the charge appellant’s counsel asked the court to charge “that in order for the plaintiff to excuse any delay he must first prove that it was caused by acts of the defendant or could have been prevented by the defendant. The Court: I so charge. Upon that branch of the^case there is another position taken by the plain'tiff, that Seligman, the person with whom he contracted, by accepting the work waived the provision as to time. Defendant’s counsel: I except.” It is not entirely clear what counsel for the surety company intended to except to in the court’s 'response to his request to charge. But the appellant’s counsel subsequently said: I except .to that portion of your charge in which' yon stated that the jury may find a waiver of the. right of the obligation to perform at a Certain time by the acceptance of the work by Seligman — unless they also find that the People’s Surety Company agreed to allow Seligman to waive it. The Court: I decline- to charge that. Defendant’s counsel: I except.” The . previous statement of counsel was. not in the nature of a request to ' charge, and it did not accurately state what the court had said in its main charge. • If, however, it be considered as a request to charge, and a declination by the court, the request was inaccurate. Seligman might either waive performance of the con tract.or alter the ' provisions of it without the consent of the surety company, and that, would be ‘binding uj>on him whatever the effect might be upon that defendant. The court then, at the request of appellant’s counsel, expressly charged the jury that if any material change in the contract was made between Seligman and the Hudson Concrete Company; the surety company was released unless it consented to such change, and with that charge it seemed content. Finally appellant’s counsel asked the court to charge that Seligman had no power to bind the People’s Surety Company or create any' liability on the part of the People’s Surety Company by waiving performance of any obligations on the part of the Hudson River Company, and the court ■ declined to charge other than it had charged, and appellant’s- counsel took an exception. Again, the request was inaccurate in form because it should have included the words “ without the consent of the said Surety Company.” But taking the language of the request and refusal in its broadest form, we think that no error was committed.. ■ There is no evidence in the case on the part of either plaintiff or defendant of an express waiver by Seligman of any breach

of contract on the part of the concrete company. The most that can be claimed with regard to this is that there was silent acquiescence on the part of Seligman in the performance of the contract by said company for a few days subsequent to the date in which, if it had not been interfered with, the contract should have been performed. It is true that if an obligee by a valid and binding agreement,- without the assent of a surety, gives further time for performance of a contract to the principal, the surety will be discharged. (32 Oyc. 191.) Mere delay in proceeding to enforce a liability will not discharge a surety, at least in the absence of notice to the obligee to take legal proceedings to enforce the same (Howe Machine Co. v. Farrington, 82 N. Y. 121; McKecknie v. Ward, 58 id. 541); and even an agreement which is one in form must be valid and enforcible to produce such a result. (Lowman v. Yates, 37 N. Y. 601; Thayer v. King, 31 Hun, 437; Olmstead v. Latimer, 158 N. Y. 313 ; Michigan Steamship Co. v. Am. Bonding Co., 104 App. Div. 347.) In the latter case the charter party required plaintiff, the owner, to convert a vessel into a tank steamer by March 12,1903. At the request of the charterer plaintiff delayed the alteration of the steamer beyond that date. In an action against the surety of the charterer the complaint alleged this fact, showing mere acquiescence, but no valid agreement extending the time. The answer set up as a defense the execution of a valid and binding agreement to postpone both the date when the charter party should begin and the date when the alteration of the steamer should be completed. Upon a demurrer to these defenses the validity of the complaint was considered, and the court held that the complaint Stated a good cause of action, since the facts therein alleged did not constitute an alteration of the contract; but also held that the answer setting up a valid and binding agreement to postpone constituted a good defense. This case clearly points out the distinction between mere acquiescence in delay and an agreement to postpone. Neither.is there in this case any evidence sufficient to constitute an estoppel against the plaintiff. (Gibson Electric Co. v. Liverpool & L. & G. Ins. Co., 159 N. Y. 426.) In that case, which was an action on a policy of insurance, it was held that to constitute an estoppel the insured must have been misled by some act of the insurer, or the latter, after knowledge of the breach, must have done something which could only be done by virtue of the policy, or have required something of the assured which he was bound to do only under a valid policy, or have exercised a right which it had only by virtue of such policy.

In this Case the position of appellant as surety was not in the slightest degree prejudiced by the delay, for, according to the testimony of Seligman, who was called as a witness in its behalf, be was entirely solvent for several months after the completion of the contract by the concrete company, and the acceptance of the work by him. We think in this case-the court should not be eager to find a reason for reversing this judgment, and that substantial justice was done.

The judgment and order appealed from'should be affirmed, with costs.

Hirsohberg, P." J., Jenics, High and Carr, JJ., concurred.

Judgment and order affirmed, with costs.  