
    Kernochan v. Murray et al.
    
    
      (Supreme Court, General Term, First Department.
    
    May 24, 1889.)
    Guaranty—Duration.
    A guaranty, by a seller of stock, that the purchaser shall receive certain dividends thereon so long as he holds the stock, which does not terminate on the death of the guarantor, may be enforced by the personal representative of the person to whom it runs, after the latter’s death.
    Case submitted on agreed statement.
    The guaranty in question was given to plaintiff's intestate, John A. Kernochan, on the sale of stock to him by defendants’ testator, and was to the effect that he should receive certain dividends on the stock so long as he held it.
    Argued before Van Brunt, P. J., and Beady and Daniels, JJ.
    
      J. Frederick Kernochan, for plaintiff. Sidney V. Lovell, for defendants’.
   Van Bbunt, P. J.

In view of the decision of the court, of appeals in Kernochan v. Murray, 111 N. Y. 306, 18 N. E. Rep. 868, construing the instrument upon which this action was brought, there remains but one question to be determined upon the trial of this case, and that is, did the personal representatives of John A. Kernochan, upon his death, acquire any rights by virtue of this agreement, he not having ever parted with the stock in question? The court of appeals have already held that this guaranty had no personal quality; that it was an original, and not a collateral, undertaking; and that, although it read, “I do hereby guaranty, ” etc, the personal representatives of the guarantor were bound. Applying the same principle of construction, if the guaranty was not terminated by the death of the guarantor, neither would it terminate upon the death of the person to whom the guaranty ran. It is true that it guarantied him as long as he held the stock, but this clearly meant as long as the stock was not parted with, and the devolution of the stock by operation of law was in no sense a parting with the stock such as was contemplated by the agreement. As the court of appeals say, in the case cited, the guaranty protected the purchaser while his interest should continue; in other words, until he voluntarily parted with his interest. Upon his death, it is true, he parted with the stock, but it cannot be assumed that he voluntarily did so; and his interest devolved by law upon his personal representative, and she stood in precisely the same relation to the contract as the deceased.

The claims made by the defendant that the guaranty was merely personal, and that the guarantor was a surety, seem to have been determined adversely to him in the case cited. The plaintiff is entitled to judgment, with costs. All concur.  