
    The Chatham National Bank, Resp’t, v. James H. Pratt, App’lt
    
      (Supreme Court, General Term, First Department,
    
    
      Filed October 16, 1891.)
    
    Guaranty—Op collection—Loches.
    In April, 1885, defendant gave to plaintiff a guaranty of collection of a certain note. He acquiesced in plaintiff’s delay until July, 1886, but no action was commenced on the note until the November following and judgment was not recovered until April, 1887, an answer having been interposed in January, which was set aside on motion a week before the judgment was entered. Held, that the delay after July, 1886, could not be said, under the circumstances, to be such as to free the guarantor from liability. •
    (Barrett, J., dissents.)
    Appeal by the defendant from a judgment entered upon a verdict in favor of the plaintiff, and from an order denying a motion for a new trial.
    E. Ellery Anderson, for app’lt; Daniel P. Hays, for resp’t.
   Bartlett, J.

The guaranty upon which this suit was brought was a guaranty of collection only, and the counsel on both sides agree that a diligent prosecution of the principal was essential in order to charge the guarantor with any liability on the instrument Craig v. Parkis, 40 N. Y., 181; Northern Insurance Co. v. Wright, 76 id., 445. The delay in proceeding against the principal in this case was so great that the learned judge who presided upon the trial correctly charged the jury that it released the defendant unless the plaintiff could show that the delay was due to some agreement, understanding or acquiescence on his part.

The guaranty was given on April 25,1885, and there was testimony by the president of the plaintiff bank tending to show that at a subsequent interview the defendant was informed that no proceedings were being taken to collect the particular note the non-payment of which has given rise to the present action, and that at this conversation he virtually assented to the course taken by the officers of the bank. The testimony of the president is contradicted not only by the defendant himself, but by Mr. William T. Pratt, for whose benefit the guaranty was given ; but we cannot say that the proof was not sufficient to warrant the jury in finding the fact of acquiescence, or that such finding was so clearly against the weight of evidence that the verdict ought to be set aside.

It cannot be held, however, that this acquiescence extended down to a date later than July 17, 1886, by which date it is plain from the evidence in the case that the officers of the bank must have understood that it was their duty to proceed to collect the guaranteed note. The bank did not bring suit until November 29, 1886, and judgment was not obtained against William T. Pratt until April 15, 1887. The defendants insisted that this delay subsequent to July 17, 1886, was so unreasonable that as a matter of law it should be held to discharge the defendant. It appears, however, that the dilatory progress of the action was due to some extent to the interposition on January 7, 1887, of an answer by one of the parties sued on the note. A motion was made to strike out this answer as frivolous on April 8, 1887, which was successful, and judgment was entered a week later. It certainly seems as though the bank ought to have proceeded with more celerity in its efforts to collect the guaranteed paper j but we are not prepared to say as matter of law that the delay after July 17,1886, was such under all the circumstances as to free the guarantor from liability.

The judgment should be affirmed, with costs.

Van Brunt, P. J., concurs.

Barrett, J.

I dissent. I think the delay subsequent to July 17, 1886, was unreasonable. There was no excuse for delaying action until late in the following November.

That alone should release the guarantor. But there was further negligence even after the commencement of the action. For if judgment was delayed by the interposition of Boyd’s frivolous answer there was surely no excuse for the three months of inaction which preceded the motion for judgment  