majority">Gould, J.

This case seems, clearly within the decisions which hold that where a guaranty is made for the purpose of paying the party’s own debt, it is not a collateral but an original undertaking, and so, good without expressing the consideration. (Cardell v. McNiel, 21 N. Y. Rep. 336. Brown v. Curtiss, 2 id. 225.) If this be so, it is plain that for so much of the price of his interest in the partnership, the taking of this note operated as a giving of credit, to its maturity. (Van Eps v. Dillaye, 6 Barb. 252.) And the statute of limitations is no bar.

The failure to return the note is a new point, not taken at the trial; and not to be taken here, for the first time.

The judgment of the circuit should be reversed, and a new trial ordered; costs to abide the event.

Hogeboom, J.

I. The judge at the circuit held that the guaranty indorsed upon the note was void. In this I think he clearly erred, if we are to follow the decisions of our court of appeals. The transaction was briefly this:

1. The defendants purchased of the plaintiff his interest in a store or stock of goods.

2. In part payment therefor they transferred to him the note of a third person, (Bevier,) and cotemporaneously indorsed upon the note the guaranty in question—a guaranty of payment, but on its face expressing no consideration—and verbally represented that the note was good.

3. The note was not paid at maturity, nor was it collectible.

4. The suit is brought upon a complaint setting forth all these facts.

The cases of Brown v. Curtiss, (2 Comst. 225,) and Cardell v. McNiel, (21 N. Y. Rep. 336,) distinctly hold that a written guaranty, or verbal promise or representation, made *150cotemporaneously with the transfer of the note of a third person to the plaintiff, that the note is good and will be paid at maturity, is not within the statute of frauds, and is not void, though expressing no consideration; provided it rests upon a consideration moving to the promissors, at the time, from the promisee, or be a mode of paying their own debt to the plaintiff. It is put upon the ground that it is not a promise to answer for the debt, default or miscarriage of another party, but is a mode of paying their own debt, or meeting their own obligations. It is obligatory, therefore, if it has a consideration upon which to rest. In the case at bar the consideration was ample.

II. It is claimed that the note was received in absolute payment of the plaintiff’s demand, and therefore that the remedy is confined to an action upon that instrument. But it is obvious from the whole case that the note, distinct and separate from the parol promise and written guaranty, was not intended to be so received, but in connection with them. And this is the fair construction both of the pleadings and the judge’s finding of facts.

III. It is claimed that after the default of the maker of the note, the note should have been returned to the defendants without delay; and that the omission to return it is fatal to the plaintiff’s right of action.

If, in ordinary cases, a note thus received in payment of the plaintiff’s claim, is necessary to be returned to the persons from whom it is received as a preliminary to the institution of a suit, which I do not concede, it was impossible to do so in this case, as the guaranty was indorsed upon the note, and the plaintiff was obliged to retain it, as the evidence of his cause of action.

But no such point was made at the trial, and non constat if it had been, but that the plaintiff could have shown an actual return of the paper, or notice to the defendants that the note was dishonored.

*151[Albany General Term,September 2, 1861.

The judgment of the circuit court should he reversed, and a new trial granted, with costs to abide the event.

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