Lucy v. Wilkins

Vanderburgh, J.

The defendant Jacoby demurs to the complaint, on the ground that he was improperly joined with the other defendants in the suit. They executed a lease to plaintiff’s assignor, running five years from its date, June 9, 1883, rent payable monthly in *22 advance, and at the time of its execution he signed a guaranty indorsed thereon as follows: “For value received I hereby guarantee the payment of the rent of the within premises, according to the terms and conditions of said lease, for the term of one year from and after June 1, 1883.” The action is for three months’rent accruing within the year and remaining unpaid. The case does not differ in principle from Hammel v. Beardsley, 31 Minn. 314 , where the payee of a note, on its transfer, indorsed thereon an absolute guaranty of payment, and it was held that he might be sued jointly with the maker, and be considered “a surety on the same instrument, ” within the meaning of Gen. St. 1878, c. 66, § 36. It is true that in that case the guarantor was a party named in the original instrument, b'ut under our statute it cannot be material that the guarantor is a third party, or that his undertaking is indorsed upon the principal agreement instead of being incorporated in it, (Carman v. Plass, 23 N. Y. 286 ,) or written under it. Pomeroy on Remedies, § 410.

Order affirmed, and cause remanded for further proceedings.