App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

the clerk of the county of New York on the 30th day of December, 1898, upon the verdict of a jury, rendered by direction of the court after a trial at the New York Trial Term, as adjudges that the plaintiff recover of such defendants.

John J. Crawford, for the appellants.

Charles E. Miller, for the respondent. RUMSEY, J.:

On the 26th day of November, 1894, the Fairfield Copper Company delivered to the plaintiff its bond in the penal sum of $26,250, conditioned for the payment by it to the plaintiff of $25,000 on or before January 1, 1896. The defendants, by an instrument under seal delivered at the same time, agreed to pay to plaintiff all damages it might sustain by reason of the failure of the obligor in the bond to pay it. The bond was not paid, and plaintiff has sued the guarantors and recovered a judgment against them for the amount of the bond and interest, and the defendants appeal.

When the bond was given, there was made between the plaintiff and the Fairfield Copper Company an agreement by which the plaintiff agreed to advance to the Fairfield Company $25,000, for which the bond was to be made, and the bond recited the advance of that sum which was the consideration for the giving of the bond. The defendants claim that this sum was not advanced to the Fairfield Company, and they say that the failure to advance it is such a material modification of the contract between the principal parties that the guarantors are discharged by it. The facts are not disputed. Before the making of the agreement and bond of November 26, 1894, the parties had been negotiating for the loan of this money by plaintiff to the Fairfield Copper Company, and one Wood had advanced to that company $3,000 in expectation that the loan would be made. Whether this was known to the guarantors who were officers of the Fairfield Copper Company is disputed, but it is not material in the view we take of this case. At the time the bond was executed plaintiff paid to the obligor $18,000. Four thousand dollars was paid on the draft of the Fairfield Copper Company, made a few days later. Wood was indebted to the plaintiff to an amount greater than $3,000 and the plaintiff, by arrangement with

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38. the Fairfield Copper Company at the time the agreement was made, credited Wood with $3,000 on his debt, and Wood accepted that credit as a payment by the Fairfield Company of the $3,000 he had lent it a few days before. This made the full sum of $25,000. But defendants insist that the credit to Wood was not cash, and as by the terms of the agreement and the recitals of the bond the whole sum was to be advanced in cash, the making of the part of the loan by way of credit for a debt then presently due was not a compliance with the contract, and so modified it as to operate as a discharge of the guarantors. In deciding this question it is not necessary to examine the nature of the contract of suretyship, nor the extent of a modification of the original contract which will discharge the surety from his guaranty. Admitting the rules on this subject to be as strict as the defendants claim them to be, the question remains whether they apply to this case. Was the contract between the principals modified at all by the manner adopted of paying the $3,000 to the Fairfield Company?

It is not claimed that this sum of $25,000 was lent for any specific purpose. It was to be used by the Fairfield Company for such purposes as its necessities required. One of these necessities was the payment of this debt of $3,000 to Wood. If the Fairfield Company had received from plaintiff on November 26, 1894, its check for $3,000 which that company had at once delivered to Wood in payment of his debt, even a guarantor would admit that the transaction was an advance of money such as would satisfy this contract. But this was the same thing in substance. It was not even in point of fact a modification of the agreement between the principal parties, but the contract they made was carried out. The manner of carrying it out avoided a useless transfer of money from the plaintiff to the Fairfield Company, and from it to Wood, but in effect it was a complete performance by the plaintiff of the contract to advance the $25,000 in cash, which means here a present advance of money to be used as distinguished from an advance by way of notes or something to become available in the future. We think, therefore, that there was no modification of the contract of the principals, and that the defendants as guarantors are liable.

It is not intended to decide that a variation of the manner of performance of the agreement to lend $25,000 agreed on between

App. Div.]

FIRST DEPARTMENT, MARCH TERM, 1899.

the principals would discharge the sureties unless they were injured by it. That question is not involved in this case. We decide that there was no variation, and that the money was advanced as agreed, and it is, therefore, unnecessary to decide what the effect of a variation would be.

The judgment should be affirmed, with costs.

VAN BRUNT, P. J., BARRETT, PATTERSON and INGRAHAM, JJ., concurred.

Judgment affirmed, with costs.

JOHN CAMPBELL and Others, doing Business under the Firm Name and Style of CAMPBELL, HENAULT & COMPANY, Respondents, v. BROCK'S COMMERCIAL AGENCY, LIMITED, Appellant.

Examination of a defendant's officers · — a plaintiff required to give a bill of particulars of matter contained in the defendant's books.

Where, in an action based upon libel, an order for a bill of particulars requires the plaintiff to give to the defendant, a commercial agency, information concerning the names of subscribers to the defendant's reports, to whom the plaintiff claims that employees of the defendant have sent the alleged libelous articles, which information the defendant's books alone contain, the plaintiff is entitled to an order requiring the defendant's officers to submit to an examination, where it does not appear that such examination will necessarily involve the giving of any information which will charge such officers with a crime.

APPEAL by the defendant, Brock's Commercial Agency, Limited, and Henry Brock, president and director of the defendant, and Thomas H. Wallace, secretary and director of the defendant, from a judge's order, entered in the office of the clerk of the county of New York on the 10th day of February, 1899, directing the examination of Thomas H. Wallace, secretary and director of the defendant, Henry Brock, president and director of the defendant, and A. W. Hatton, director of the defendant; also from two orders made at the New York Special Term and entered in the office of the clerk of the county of New York on the 28th day of January, 1899, and on the 8th day of February, 1899, respectively, denying the defendant's motion to vacate such order.

App. Div.- VOL. XXXVIII. 18

FIRST DEPARTMENT, MARCH TERM, 1899.

[Vol. 38.

The plaintiff had been required by an order to give to the defendant a bill of particulars of each person, firm and corporation to whom it intended to give evidence that the alleged libel was delivered, published or circulated.

D. M. Porter, for the appellant.

Henry W. Bean, for the respondents.

RUMSEY, J.:

The order of January seventh, requiring the defendant's officers to appear and submit to an examination, was a judge's order made ex parte. The remedy, if it was irregular or improper, was by a motion to set it aside and not by appeal. The appeal, therefore, from this order was unauthorized and must be dismissed.

The order for a bill of particulars required of the plaintiff to give to the defendant certain information which the defendant's books alone contained. It was, therefore, important, before the plaintiff could comply with this order and make the bill of particulars, that he should obtain from the defendant this necessary information. For that reason it was proper to deny the motion to vacate the order for an examination. The fact that the plaintiffs know the names of certain of the subscribers to the defendant's reports is not a reason for denying them the right to examine the books of the defendant and ascertain the names of all the subscribers to whom this libel was delivered, because they have the right to make proof of a delivery of the libel to any one whom they learn to be such at any time. It is, therefore, necessary that they should know the names of all the subscribers in order that they may be able to put them in the bill of particulars, and thus be in a situation to prove the delivery to any subscriber, if they shall subsequently ascertain that such delivery was made. The examination will not necessarily involve any information which might charge the officers of this corporation with a crime. The officers are not charged with libel, and it cannot be assumed that they are personally guilty because one of the employees of the corporation sent these libelous articles to the subscribers. (People v. Armour, 18 App. Div. 584; Fox v. Miller, 20 id. 333.) If upon the examination any question should be asked of one of the officers as to which he should be entitled to claim his privilege

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FIRST DEPARTMENT, MARCH TERM, 1899.

because it tended to convict him of crime, he would then be at liberty to assert his privilege, and the judge before whom the examination was taken would be called upon to rule upon the question. (Skinner v. Steele, 88 Hun, 308.)

For these reasons the order should be affirmed, with ten dollars costs and disbursements.

VAN BRUNT, P. J., BARRETT, INGRAHAM and MCLAUGHLIN, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

MILN P. PALMER, as Trustee, etc., of FRANCIS B. HEGEMAN, Deceased, Respondent, v. NELSON H. SALISBURY, Individually and as Assignee of ABRAM STEERS, etc., Appellant, Impleaded with PASQUALE ALTIERI and Others.

Amendment of a complaint—the order must direct its service on a defendant who is in default.

An order directing the amendment of a complaint without directing its service upon the defendant, and giving him an opportunity to answer it, although he may be in default in not answering the original complaint, is erroneous.

APPEAL by the defendant, Nelson H. Salisbury, individually and as assignee of Abram Steers, etc., from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 10th day of January, 1899, granting the plaintiff leave to amend his complaint.

Henry G. Atwater, for the appellant.

Howard Me Williams, for the respondent.

RUMSEY, J.:

There can be no doubt that the court had power in the proper case to allow the amendment to the complaint, but the rule is, almost without exception, that whenever a complaint has been amended it is necessary that a copy of it should be served upon the defendant, and that he should have an opportunity to answer it, if he desires. The fact that he has defaulted in answering the original

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