
    John M. Raymond, Respondent, v. Cornelius H. Tallman, Defendant, Impleaded with The Union Surety and Guaranty Company, Appellant.
    
      ■Guaranty by a surety company of a bond and mortgage — it is not discharged by an • . erroneous recital in such guaranty.
    
    Where a surety company, for hire, becomes surety upon a bond given to secure the payment of a bond and mortgage, executed by the principal obligor to the obligee, the fact that the bond erroneously recites that the premises were covered by prior mortgages amounting to §91,000, when, in fact, the prior mor.t.gages amounted to $94,000, does not constitute a defense to the surety in an ¡action brought by the obligee to enforce the bond.
    Appeal by the defendant, The Union Surety and Guaranty Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 1st day of April, 1904, upon the verdict of a jury rendered by' direction of the court after a trial'at the New York Trial Term.
    
      Wilson B. Brice, for the appellant.
    
      C. R. Freeman, for the respondent.
   Laughlin, J.:

This is an action upon a bond executed to Mary B. Raymond, the plaintiff’s wife and assignor, by the defendant Tallman as principal ¡and the appellant as surety whereby they acknowledged themselves indebted to iler in. the sum of $6,500. ¡ The bond was conditioned for the payment to the obligee of the sum of $6,500 according to the tenor of a certain other bond for $6,500 executed to her by the defendant Tallman and of a mortgage upon . real estate as security therefor. Payment of the indebtedness was not made and the plaintiff’s wife' assigned her interest and her claim against the defendants to him prior to the commencement of the action. The ■only point presented by the appeal is whether' a recital in the bond ¡sued upon concerning the mortgage given as security for the other bond bars a recovery. The appellant is not in a position to present ¡any question of fact, for it neither requested that any question of fact be submitted to the jury nor did it except to the direction of the verdict. Its counsel, however, moved for a nonsuit at the close ■of the plaintiff’s case and for a dismissal of the complaint at the close of the evidence and took an exception to the refusal of the court to grant these motions. If, therefore, in no views of the evidence could the plaintiff recover, doubtless the appellant’s rights are preserved by these exceptions. The bond, after the formal acknowledgment of the indebtedness and the usual recital of date .and seal and before the clause containing the condition, contains the following recital:

" . “ Whereas, the above bounden Cornelius II. Tallman has executed a bond in the sum of Six thousand five hundred ($6,500) dollars to the above named Mary B. Raymond, due at two years, and bearing six per cent interest, which bond is secured by a mortgage for • that amount on the property Nos. 207 and .209 West 56th street, in the city of New York, and which mortgage shall be inferior only in lien to' a mortgage of Seventy-six thousand ($76,000) dollars to the Bank of Savings, New York City, and to a mortgage of Fifteen thousand ($15,000). dollars unto A. Gertrude Gutter, and which mortgage contains interest, insurance, tax, receivership, assessment .and warranty clauses.” _

The condition clause of the bond is in the usual form commencing with “Now, therefore, the condition of the above obligation is .such that if” said Tallman, his heirs, administrators and assigns shall well and truly pay the $6,500, being the amount of said bond .and mortgage ” to the obligee at maturity with interest “ then this •obligation is to be void ; otherwise to remain in full force, virtue .and effect.” Then follow other conditions of the bond-with respect to notifying the surety company of the commencement of the foreclosure of any prior mortgage and of any default under 'the other bond. This bond was dated the 5th day of November, 1900, and it was acknowledged two days later. The mortgage and the other bond were also dated November fifth and acknowledged on the .same day but the mortgage was not recorded until three days later..

It does not appear whether they were delivered at the same or at •different times. The mortgage recites that the mortgaged premises were then subject to mortgages aggregating $91,000, being the same amount as that stated in the recital in the bond. Upon the trial, for the purpose of obviating the necessity of producing the records, counsel for the plaintiff conceded that there remained undischarged! of record upon the premises, senior to the mortgage to the plaintiff’s assignor, a mortgage to a savings bank for $60,000, a mortgage for .$16,000 to.one Grabfelder, a mortgage to one Cutter for $15,000,. and, in substance, he admitted that there was another mortgage for $3,000, wllich he claimed was not a valid existing lien. There is-no evidence that either the plaintiff or his assignor made any representation to the surety company concerning the liens upon the-property. The surety company is an insurance co'mpány engaged, among other things, in insuring the performance of contracts for hire. The inference is that the plaintiff’s assignor required further-security of the defendant Tallman as a condition of accepting his. bond and mortgage as a satisfaction of an existing indebtedness and that Tallman employed the surety company to become his surety. The surety company may be entitled to relief -against Tallman, but: we fail to see any ground for awarding it any relief against the-respondent. The surety company undertook with its principal that he would pay the indebtedness owing to the plaintiff’s assignor That was the. condition of the bond. The reference to the mortgage is a mere recital, the correctness of which could liay-e been ascertained by the record; but the correctness of this recital was-not a condition of the' appellant’s liability to the assignor of the- . plaintiff.

It follows, therefore, that the judgment should be affirmed, with, costs.

Van Brunt, P. J., Patterson, O’Brien and Hatch, JJ.,, concurred. ' .

Judgment affirmed, with costs;  