
    The State Bank, Respondent, v. Samuel Kahn, Impleaded, Etc., Appellant.
    (Supreme Court, Appellate Term,
    February, 1906.)
    Principal and surety — Eights and remedies of surety against principal —Enforcement of judgment appealed from by surety on appeal bond: Surety’s right does not extend to indorser of note not sued.
    Subrogation — Eights of sureties — Sureties on undertaking.
    The surety upon an undertaking on appeal, given by a defendant upon an appeal from a judgment against him, who is compelled t(> pay the judgment, is subrogated to all the rights of the judgment creditor under the judgment appealed from, but not to the right of the judgment creditor to enforce the liability of an indorser upon the note on which the judgment appealed from was recovered, wli® was not sued and against whom no judgment was entered.
    Appeal by the defendant from a judgment of the City Court of the city of ¡New York, rendered in favor of the plaintiff.
    
      Wasserman & Jacobus, for appellant.
    ¡Nathaniel Levy, for respondent.
   Greenbaum, J.

The defendant Samuel Kahn was an accommodation indorser and the last indorser of the note in suit. Plaintiff entered judgment against the maker and the indorsers other than the defendant Samuel Kahn. One Silas Schwartz became one of the sureties on an undertaking given by the judgment debtors on appeal from said judgment and as such surety paid the amount of the judgment to the plaintiff.

Thereupon Schwartz became subrogated to the right of the plaintiff as against the judgment debtors whose debts he was compelled to pay, and he became entitled to enforce all appropriate remedies against said judgment debtors that might have been available to the plaintiff. Sheld. Sub., § 11; Smith v. National Surety Co., 28 Misc. Rep. 628.

But the defendant Samuel Kahn was not a judgment debtor when judgment was entered against the other defendants and Schwartz gave no undertaking in behalf of him. Schwartz was, therefore, in no position to assert any claim against Samuel Kahn by reason of his suretyship.

“As respects one another, indorsers are liable prima facie in the order in which they indorse ”. Neg. Inst. Law, § 118.

By section 201 (subdivision 4) of the ¡Negotiable Instruments Law a valid tender of payment, made by a prior party, discharges one secondarily liable on the instrument.

In the case before us, the payment by Schwartz, as surety for the maker and prior indorsers, was a payment in their behalf which operated to discharge the note against the defendant Samuel Kahn.

There was no assignment of the, notes or of plaintiff’s claim to Schwartz shown and, indeed, if there were, the circumstances under which Schwartz claims to succeed to the rights of the plaintiff would simply establish a subrogation in favor of Schwartz as against the other defendants.

This action must be treated as though continued against Samuel Kahn by the plaintiff; and, as plaintiff concededly admits the payment of the notes, the judgment should be reversed and the complaint dismissed, with costs to appellant in this court and the court below.

Giegebioh and Scott, JJ., concur.

Judgment reversed and complaint dismissed, with costs to appellant in this court and court below.  