
    The President and Directors of the Bank of New York against Livingston.
    Where A. by writing for a valuable consideration, guarantied the payment of a sum of money by B. to C. and B. on demand, refused to pay at the time, and C. gave notice to A. of the failure of payment, and demanded the amount of him, it was held, that the demand of payment of B. and refusal by him, and notice thereof to A. were sufficient to entitle C. to recover against A. on his guaranty, without a previous suit against B.
    This was an action on the case, brought upon a contract as follows: “ Whereas the bank of New York has agreed to lend the committee appointed to superintend the building of a new theatre, a sum not exceeding 25,000 dollars, for nine months, at the interest of six per cent, for the purpose of completing the theatre, on condition that satisfactory security be given for the repayment of the said loan : we, the subscribers, wishing to facilitate the completion of the said theatre, do hereby agree to guaranty *to the
    bank of New York, the repayment of the loan above mentioned, with the interest in proportion to the sums affixed to our names respectively.” Dated, &c. (Signed,) John R. Livingston, for 1000 dollars, and by others.
    At the trial, the advancement of the loan by the plaintiffs was proved ; when the same became due, the committee were called upon by the plaintiffs for payment, which was refused, as they had no funds. The plaintiffs then gave notice in writing to the defendant of such refusal, and required of him the payment of the sum affixed to his name, agreeably to the contract. A verdict was found for the plaintiffs, with the interest.
    
      E. Livingston, for the defendant,
    now moved to set aside the verdict, and for a new trial. He contended that the plaintiffs, before they could be entitled to an action against the defendant, ought to have sued the committee, to whom the credit was given by the plaintiffs.
    
      jHarison, contra.
   Per Curiam.

The members of the committee were mere agents in this transaction, and there was no necessity of suing them. The defendant absolutely guarantied the payment of the sum subscribed by him. He stands as surety at least, and is liable, in the first instance, to the plaintiffs. It is unnecessary to decide whether the plaintiffs could maintain an action against the agents. If they could, the defendant is collaterally liable, and the plaintiffs have done all that was necessary to make the defendant responsible.

Motion denied.() 
      
      
        (a) See Theobald on Principal and; Surety, 1, 2, 45, et seq. Pitman on Principal and Surety, 26, et seq. Burge on Principal and Surety, 40, et seq.
      
     