Whiteside v. Connolly , 44 N.Y.S. 1134 ( 1897 )

Conlan, J.

This is an appeal from a judgment, entered on a verdict óf a jury and from an order denying a motion for a new trial. .

The action was commenced to. recover' .the sum of $500 paid by the plaintiff as guarantor of a lease made by one Julia E. Ellert, to the defendant.

The words of the said guarantee were as follows:

“ In consideration of the above letting, and the cancellation of the lease now held by me, I hereby guarantee and in case default is made therein, hereby agree to pay the rent reserved herein for six months and two days up to and including January 1, 1897.”

The answer denied any knowledge as. to the payment of the rent by the plaintiff and alleges that the plaintiff, who was the former lessee of the premises, made certain fraudulent representations as to the number of persons who he had booked for the season, the premises being a summer hotel.

There was no direct evidence that the defendant asked the plaintiff to become surety on the lease, but there was evidence that Mrs. Ellert refused to execute the lease unless plaintiff signed as surety and the plaintiff did so sign in the presence of the defendant.

This is denied by the defendant, who testified that the guaranty was not on .the lease when executed and delivered to him. The question, therefore, as to whether the guaranty was signed by the plaintiff after the lease was executed and without the knowledge of the defendant or in his presence and with his sanction and approval before delivery, was for the jury.

The question at folio 70, relating to what might or what might not be made from the business, was properly excluded as too1 indefinite and uncertain.

The witness could not give his, naked .opinion without a single fact upon which, it was predicated.

• The'case- presents only questions of fact and they having been passed upon by the jury under a fair charge, we think the judgment should be affirmed, ■

Judgment is, therefore, affirmed, with costs.

Fítzsimons and McCarthy, J.J., concur.

Judgment affirmed, with costs.