Emily H. C. Jacocks, Respondent, v. Leo C. Dessar and Sadie Dessar, Appellants

Emily H. C. Jacocks, Respondent, v. Leo C. Dessar and Sadie Dessar, Appellants. First Department, December 11, 1908. Guaranty — pleading —performance of condition precedent — exhaustion of remedy against principal. A complaint against one who guaranteed performance of a contract is defective if it fails to allege non-performance by the principal of a condition precedent to liability. But where the guaranty is one of general performance and payment such complaint need not show that the plaintiff exhausted her remedy against the principal before resorting to the guarantors. Appeal by the defendants, Leo O. Dessar and another, from an interlocutory judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 4th day of June, 1908, upon the decision of the court, rendered after a trial at the New York Special Term, overruling the defendant’s demurrer to the complaint. Herbert R. Limburg, for the appellants. Dudley Dupignac, for the respondent. [MAJORITY — Houghton, J.:] Houghton, J.: The complaint sets forth the same facts alleged in Jacocks v. Morrison (129 App. Div. 284), decided herewith, and in addition that the defendants jointly and severally guaranteed the conveyance of the fifteen-acre plot or in default thereof the payment of the $3,500. The complaint in this action is, therefore, defective in failing to allege selection of the particular plot to be conveyed, and the overruling of the demurrer was error for that reason. Another ground, however, is urged which we deem untenable and which it is proper for us to decide,'and that is that it was incumbent upon plaintiff to allege that she had exhausted her remedy against the principal, Morrison, before resorting to the defendants as guarantors. The guaranty alleged is one of general performance and payment. A guaranty of payment or of performance is an absolute undertaking imposing liability upon the guarantor immediately upon default of the principal regardless of whether any steps are taken to enforce the liability of the principal debtor. (Wood v. Tunnicliff, 74 N. Y. 38; 20 Cyc. 1450.) It was not necessary, therefore, for the plaintiff to allege the exhaustion of remedy against Morrison, the principal. Because of the other defect, however, the interlocutory judgment overruling the demurrer to the complaint must be reversed, with costs, and the demurrer sustained, with costs, with leave to the plaintiff to amend upon payment of costs in this court and the court below. Patterson, P. J., McLaughlin, Laughlin and Scott, JJ., concurred. Judgment reversed, with costs, and demurrer sustained, with costs, with leave to plaintiff to amend on payment of costs.