
    Samuel B. Wickham, App’lt, v. Joseph F. Terhune, Resp’t.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December 11, 1889.)
    
    Principal and surety—Nonsuit.
    Upon the dissolution of their partnership plaintiff paid defendant one-half of an uncollected claim of the firm against the Jenkins Flour Co., and it was agreed that if plaintiff could not collect the claim defendant should return the half paid him. After some conversation as to the best' way to secure the claim plaintiff took a note at six months of M. Jenkins & Co.; with this defendant expressed himself as satisfied; also, told him not to sue the note ; that he did not want to pay costs. Plaintiff did not sue the note, and brought this action for the one-half of the claim paid defendant. He was nonsuited. Held, that the case should have gone to the jury.
    
      T. A. Read, for app’lt; C. H. Decker, for resp’t.
   Putnam, J.

This is an appeal from a judgment of the county, court of Sullivan county, and from an order denying a motion for a new trial.

The parties were partners, and had an account against the, “ Jenkins' Flour Company ” for $477.50. In August, 1882, they dissolved, and plaintiff paid defendant $1,731.85, which includes one-half of the above account of 11 Jenkins' Flour Company." Plaintiff testifies that, at the time of the settlement, the Jenkins’ bill was discussed by the parties, and it was agreed that if plaintiff could not collect it, defendant should pay him the one-half thereof included in the check of $1,731.85. It was afterwards talked over between the parties that plaintiff should get it secured in the best way he could. His son should go to New York and get it fixed in any way he could, and this was the agreement between Terhune and plaintiff.

Plaintiff, on September 8, 1882, took a new note at six months from "M. Jenkins & Co." After this plaintiff testifies that de•fendant said he was satisfied with it, that is, the taking of the new note; that defendant did not wish plaintiff to sue the note; told him not to sue it. Did not want to pay costs, and would pay plaintiff without paying any costs on it. The plaintiff was non-suited.

It is well settled that in' passing on the propriety of a judgment of nonsuit, the party against whom the judgment is rendered is entitled to the most favorable construction of the evidence, and in considering this case we will assume the facts which the testimony of the plaintiff legitimately conduced to prove. Ernst v. Hudson River Railroad Co., 35 N. Y., 25.

Now, it appears that on the settlement of the parties, plaintiff paid the defendant for one-half of an account he was not bound to, as it was uncollected, and defendant said if it remained uncol-' lected he would pay the one-half back. That this was a valid contract will not be doubted. It is claimed that plaintiff should put the bill in judgment and have an execution returned unsatisfied before he can collect it. But it appears that this was not done at defendant’s request Defendant could undoubtedly waive the obtaining of judgment if otherwise necessary, and there is proof that he did.

It is suggested that tne position of defendant in regard to this note was that of a surety or guarantor, and that plaintiff, by taking a new note with security and extending the time of payment, released the surety. It is a fact that ordinarily where a principal extends the time of payment in any binding way, so as to legally prevent bim from enforcing the obligation signed by the surety, without the consent of the latter, that the surety is discharged. Powers v. Silberstein, 108 N. Y., 169; 13 N. Y. State Rep., 125.

Such extension must be- without the consent of the surety. Now, assuming that the defendant was a surety for the payment of the Jenkins note, there is evidence in the case that the new note was taken with his consent. It was agreed with defendant that plaintiff or his son should go to New York and get it fixed any way they could. Plaintiff’s son went down and brought back the note. Defendant said he was satisfied with it, and afterwards said he would pay plaintiff. Hence, if the case had been submitted to the jury they could have properly found on the evidence a consent of the defendant to the taking of the new note.

Again, there is no evidence that when he took the new note of "M. Jenkins & Co.” plaintiff made any valid agreement to extend the time of payment of the claim against the “Jenkins Flour Co." The burden was on the defendant to show such extension. Powers v. Silberstein, 108 N. Y., 169; 13 N. Y. State Rep., 125.

The new note may have been taken merely as collateral to the old claim.

We conclude that the case should have been submitted to the jury, and hence that the judgment and order should be reversed and a new trial granted, costs to abide the event.

Learned, P. J., and Landon, J., concur.  