
    Third Nat. Bank of Springfield v. Hastings.
    
      (Supreme Court, General Term, First Department.,
    December 29,1890.)
    Promissory Note—Accommodation Maker—Rights of Indorsee.
    A resident of New York made a note for accommodation of the payees, residents of Massachusetts, "which they indorsed to a bank in the latter state. Under the laws of Massachusetts, the indorsers were adjudged insolvent, and the bank proved the note as a claim against them, and received a dividend thereon, and a discharge from their indebtedness was granted to the indorsers. Held, that as such indebtedness would have been discharged as to the bank, even had it not appeared and taken the dividend, and the maker was not deprived by its so doing of any rights as surety, he was not discharged from liability to the bank on the note.
    Appeal from circuit court, New York county.
    Action by the Third National Bank of Springfield, Mass., against Orlando B. Hastings, doing business under the firm name of Hastings & Todd. Defendant appeals from a judgment for plaintiff, entered on a verdict directed by the court.
    Argued before Van Brunt, P. J., and Brady and Daniels, JJ.
    
      Jay & Candler, (Flamen B. Candler and John Jay Chapman, of counsel,) for appellant. Putney, Bishop & Slade, (James L. Bishop, of counsel,) for respondent.
   Van Brunt, P. J.

This action was brought to recover upon a promissory note made by the defendant, under the firm name of Hastings & Todd, to the order of the Hurlburt Paper Company, properly indorsed, and delivered to and held by tbe plaintiff. The defendant made the note for the accommodation of the Hurlburt Paper Company, under which name Thomas 0. Hurlburt and H. C. Hurlburt conducted business as copartners. The Hurlburts were afterwards adjudged insolvent, under the laws of the state of Massachusetts, in proceedings instituted in the court of insolvency for the county of Berkshire, in that state. The plaintiff proved its debt under the insolvency proceedings, which resulted in a composition and discharge of the debtors under said act, by which it was adjudged that, upon the debtors paying into court a sum sufficient to pay to their creditors 20 per cent, of their indebtedness, a certificate of discharge should be granted them. They made the payment, and the discharge was granted. The plaintiff received 20 cents on the dollar upon the claim proved, which claim included, among other things, the note in suit. The plaintiff is a national banking association, organized under the United States statute at Springfield, in the county of Hamilton and state of Massachusetts, where it was located and had its place of business. The Hurlburts were both residents of the state of Massachusetts, and the defendant was a resident of this state. The question presented at the trial was whether the discharge of the Hurlburts under the Massachusetts insolvent laws furnishes a defense to the defendant as against his liability as maker of the note in suit. The court directed a verdict for the plaintiffs, and from the judgment thereupon entered this appeal is taken.

It is urged upon the part of the plaintiff that, conceding that the defendant occupied the position of accommodation maker, and the Hurlburts were principal debtors, the discharge of the Hurlburts in the insolvency proceedings would not discharge the liability of the defendant, because, under the insolvent laws of Massachusetts, it is expressly provided that a'discharge shall not release or discharge a person liable for the same debt as partner, joint contractor, indorser, surety, or otherwise. This proposition it does not seem to be necessary to decide in the disposition of this case. But it is doubtful whether the courts of this state, as against a resident of this state, would give effect to this provision of the statute law of Massachusetts in contradiction of its own policy in that regard. But we think there is another proposition which is fatal to the defendant’s contention, and that is the plaintiffs, the owners of the debt, and the Hurlburts, the debtors, were both residents of Massachusetts. The insolvency court acquired jurisdiction, both of the subject-matter, viz., of the debt due to the plaintiff, and of the persons, both debtors and creditor. Their discharge under the insolvent laws discharged, the debt as to them, whether the creditor appeared or not; and therefore the appearance of the creditor and the taking of the dividend in no way deprived the surety of any rights which he could have maintained had not such appearance been had. It is a well-established principle that where debtor and creditor reside in the same state, and the debtor is discharged by the insolvent laws of that state, the discharge is valid everywhere. And it is equally well settled that, where a debtor and creditor are residents of different states, a discharge under the bankrupt laws of the state where the debtor is domiciled will not operate as a discharge of the debt in the state where the creditor is domiciled. It was for this reason that it was held in the cases cited by the defendant that the appearance of the creditor in the bankruptcy court, and thus conferring jurisdiction upon the bankruptcy court, although not a resident of the country over which the court had jurisdiction, and the accepting of a dividend, discharged the surety. In such a case, unless the creditor had intervened, the discharge would have had no effect upon the debt in the jurisdiction where the creditor and the surety lived, and the property of the debtor Which might come into that jurisdiction could be made subject to the payment of the debt. But no case has been found, and no principle adverted to, where the debtor and creditor reside in the same state, and tbe discharge would be operative whether the creditor appeared and proved his debt or not, holding that the proving of a debt or the taking of a dividend by the creditor discharges the surety. The whole theory of these decisions is that, the surety is entitled to be subrogated to the rights of the creditor; and that, in a case where the discharge becomes operative as to the debtor, the right of the surety is cut off without his having an opportunity to be heard, and where that is done voluntarily by the creditor he cannot subsequently come upon the surety for any portion of the debt. But where the discharge has taken place involuntarily, or where, whether the creditor appeared or not, the same result would have followed, except that the surety’s liability would have been increased because the debt would not have been diminished by the dividend, the rule in the cases cited cannot apply.

It is urged upon the part of the appellant that the mere fact that the creditor resided in the state with the bankrupt would not destroy a foreign surety’s right to subrogation. But in this proposition the learned counsel overlooks the principle which is conceded in the cases of Gardner v. Bank, 11 Barb. 558, and Phelps v. Borland, 103 N. Y. 406, 9 N. E. Rep. 307, that, if the bankrupt court acquired jurisdiction of the creditor without his intervention, the debt would have been discharged, and the surety would have lost no rights. And those cases were decided as they were, only because the creditor voluntarily intervened, and gave the court jurisdiction to so discharge the debt that the rights of the surety were gone. If a bankruptcy court having jurisdiction of the person of the creditor could not discharge the debt so that the right of the surety would be extinguished, it could not do so where the creditor herein appeared, being a non-resident, and thus conferred jurisdiction. But the contrary is the rule recognized by the cases above cited, viz., that where the court has jurisdiction of the person in proceedings of this description, where the creditor is a resident within the jurisdiction of the insolvency court, its decree discharges the debtor absolutely, and there are no rights against the debtor to which anybody can be subrogated. The judgment should be affirmed, with costs. All concur.  