Opinion
April 24, 1925.
Harold H. Feigin, for the appellant.
Nathaniel Seaman, for the respondents.
Judgment unanimously reversed upon the law, with thirty dollars costs to the appellant, and judgment directed for the plaintiff for the amount claimed, together with appropriate costs in the court below.
The status of a creditor to a firm, where one partner retires and the other assumes the existing obligations, is stated in subdivision 3 of section 67 of the Partnership Law of 1919, as follows: "Where a person agrees to assume the existing obligations of a dissolved partnership, the partners whose obligations have been assumed shall be discharged from any liability to any creditor of the partnership who, knowing of the agreement, consents to a material alteration in the nature or time of payment of such obligations." There was no proof here that plaintiff knew that Goldstone had assumed the obligations of the firm upon the retirement of Bershad. There is no proof of any material alteration in the nature or time of payment of the firm's obligation to plaintiff. Failure to sue is not a material alteration in the nature or time of payment. Mere indulgence by a creditor of the principal debtor will not discharge a surety. ( Powers v. Silberstein, 108 N.Y. 169.) It may be said, without deciding, if plaintiff knew of the assumption agreement, and had been notified by Bershad to begin an action against Goldstone at a time when Goldstone was solvent and plaintiff failed to take proceedings until Goldstone was insolvent, Bershad would be released. ( Colgrove v. Tallman, 67 N.Y. 95.) There is, however, no proof that there was any demand upon plaintiff to sue Goldstone and if plaintiff knew of the assumption agreement it was not necessary for plaintiff to proceed against Goldstone first. ( Morrisey v. Berman, 94 N.Y.S. 596, dissenting opinion of GREENBAUM, J.; Phillips v. Schlang, 139 A.D. 930, revg. 67 Misc. 142, on the dissenting opinion of WHITNEY, J.)
Present: CROPSEY, LAZANSKY and MacCRATE, JJ.