Appellant's liability, if any, must rest upon her contract of guaranty. Her sole defense is the six-year Statute of Limitations. She was not the maker, as in State Bank ofBinghamton v. Mangan (269 N.Y. 598), nor a co-maker, as inHoover v. Hubbard (202 N.Y. 289) and Shoemaker v.Benedict (11 N.Y. 176), nor a surety, as in Littlefield v.Littlefield (91 N.Y. 203) and Gould v. Cayuga County Nat.Bank (86 N.Y. 75), nor an indorser within the provisions of the Negotiable Instruments *Page 318 Law (Cons. Laws, ch. 38). Her status differs radically from that of the defendant in McMullen v. Rafferty (89 N.Y. 456), who, instead of executing an agreement expressly guaranteeing payment of a negotiable note, merely wrote his name on the back of a note without any other words. Although the opinion in that case states that the defendant was not an indorser with the rights and liabilities of a simple indorser, suggests that he could be held as a maker or as a guarantor and discusses the effect of the Statute of Limitations in respect to a guarantor, this court inMurdock v. Waterman (145 N.Y. 55, 64) treats the defendant inMcMullen v. Rafferty as an indorser.
When appellant contracted to "guarantee the payment" of the notes she became an absolute guarantor for the payment. The effect of this language is that the maker will pay and makes appellant liable when the maker failed to pay. (Catskill Nat.Bank v. Dumary, 206 N.Y. 550, 558.) When she contracted in the form of a guaranty upon the back of the note she cannot be made liable as indorser but is under an absolute agreement to see that the maker paid the note at maturity, (Brown v. Curtiss,2 N.Y. 225, 228.) Her intent to bind herself as a continuing guarantor must be inferred. The maker did not pay and he has not yet succeeded in shaking off his liability. A distinction between a guarantor and a maker, indorser or surety is recognized (Arant on The Law of Suretyship and Guaranty, pp. 13, 20), and we have held in First Nat. Bank v. Jones (219 N.Y. 312, 314): "If the agreement was an unconditional guaranty of payment then the plaintiff's right of action on the guaranty was complete when the makers of the notes failed to pay according to the terms thereof. (Brown v. Curtiss, 2 N.Y. 225, 227; Stein v. Whitman,209 N.Y. 576.)"
CRANE, Ch. J., LEHMAN, LOUGHRAN and RIPPEY, JJ., concur with HUBBS, J.; O'BRIEN, J., dissents in opinion; FINCH, J., taking no part.
Judgments reversed, etc. *Page 319