
    (54 Misc. Rep. 319)
    EVANS et al. v. SCHIFF.
    (City Court of New York, Trial Term.
    May, 1907.)
    Guaranty—Construction .
    Where defendant guaranteed plaintiffs that whatever materials they delivered to a third person defendant would pay for “sixty days after each delivery. The amount not higher than $250”—is a contract for materials to the amount of $250, and the defendant is not liable for goods delivered in" excess thereof.
    [Ed. Note.—For cases in point, see Cent. Dig. vol. 25, Guaranty, § 49.]
    Action by Barnett Evans and others against Harry Schiff. Verdict for plaintiff.
    Motion to set aside verdict and for a new trial granted.
    Samuel Goldstein, for plaintiffs.
    Philbin, Beelcman & Menken, for defendant.
   GREEN, J.

This is a motion to set aside a verdict directed for the plaintiff and for a new trial. The action was brought by the plaintiff against the defendant to recover an unpaid balance for merchandise delivered to one Cohen, and arising out of the following written instrument

“I Harry Schiff, of the borough of Manhattan, New York City, for and in consideration of the sum of one dollar and other good and valuable considerations, hereby guarantee to Evans Bros, that whatever paints or materials that they deliver to M. Cohen contractor to be used on the buildings on the south side of 111 St. between Manhattan and Eighth avenue N. Y. City that I Harry Schiff, will pay for - same. Dated N. Y. April 27th, 1906. Terms sixty days after each delivery. The amount not higher than two hundred and fifty dollars ($250).
“[Signed] H. Schiff.”

The plaintiffs contend that this instrument constitutes a guaranty;, the defendant that the' instrument is a contract of suretyship. The distinction between suretyship and guaranty is well known and so well settled as to require no citation of authorities to sustain a definition of the respective terms, but the difficulty the courts have always met is in the proper construction or interpretation of the instrument from .the language used, in order to place it within its proper class. The distinction between the two classes is “a surety undertakes to pay if the debtor do not, while the guarantor undertakes to pay if the debtor cannot.” An examination of the instrument upon which the recovery was had and the élimination of language not material for the proper interpretation of the intent and character thereof brings the intent clearly to the mind. Skeletonized and without transposition, the language of the instrument may be said to be as follows:

“I Harry SchifE * * * guarantee Evans Bros, that whatever * * * materials they deliver to M. Cohen * * * I will pay for * * * Sixty days after each delivery. The amount not higher than $250.
“[Signed] H. SchifE.”

It will be noted that nothing contained in the instrument refers to a sale of the materials to Cohen, but the language is that the defendant will pay for any materials delivered to him, and, while the word used is that the defendant “guarantees,” I am of the opinion that the instrument is neither in the strict legal sense either a guaranty or a suretyship, but a distinct original contracf or promise by the defendant to pay for materials delivered to Cohen. The plaintiffs delivered to the said Cohen and for the use in the premises in question goods of the proven value of $561.13, of which amount $220.50 it is admitted was paid by defendant, leaving a balance of $340.63, and for the recovery of this sum the action is brought against the defendant to recover against him, up to the amount of $250, the amount of the alleged liability set forth in the written instrument. The defendant claims that, having paid the sum of $220.50, his indebtedness to the plaintiffs is but $29.50, which' he tendered to the plaintiffs before suit and before trial. The plaintiffs claim that the instrument is a continuing guaranty and that its effect was to make defendant liable if there was a balance due of $250, no matter how much he had previously paid, and they further contend that the intendment of the instrument was that each delivery was to' be “the amount not higher than $250,” and refer in substantiation of such contention to the language, “terms sixty days after each delivery. The amount not higher than $250.” With this interpretation I cannot now -agree. The language, “terms sixty days after each delivery,” was a limitation as to the time of the credit, and had no relation to the amount which the defendant agreed and bound himself to pay, except as to the time of such payment. The true meaning and interpretation of the instrument ma)' be said to be, briefly, that- the defendant would pay'for .whatever paints or material were delivered, but only up to $250.

This being the conclusion at which I have arrived, I am of the opinion that the court erred in directing a verdict for the plaintiff, and it should therefore be set aside, but without costs. Motion to set aside the verdict and for a new trial granted and cause restored for May 14, 1907.

Motion granted and cause restored.  