The plaintiffs concededly released Abraham Lubell from his guaranty on April 25, 1930, without the knowledge or consent of his co-surety Samuel Lubell. They had the right to do so, though thereby they destroyed the relationship of co-sureties between Samuel Lubell and his brother Abraham and Samuel's right to contribution which arises out of their relationship. The consequence was, however, to release Samuel Lubell from his obligation as guarantor to the extent that by the plaintiffs' voluntary act he lost right of *Page 15 contribution from Abraham who at that time was concededly solvent.
The plaintiffs had the same right thereafter to accept a new guaranty from Abraham Lubell or any other person as they had to release the old guaranty of Abraham. As between themselves and Abraham, liability under a new guaranty is conclusively established by the judgment against Abraham Lubell. Because of that liability the relationship of co-sureties between Abraham Lubell and Samuel Lubell has again arisen with its consequent right of contribution. In accepting a new guaranty the plaintiffs assumed the risk of the insolvency of the guarantor. They could not, without Samuel Lubell's consent, enlarge his own liability which had previously been partially wiped out and shift to him the risk of insolvency of the guarantor.
POUND, Ch. J., O'BRIEN, HUBBS, CROUCH and LOUGHRAN, JJ., concur with CRANE, J.; LEHMAN, J., concurs in separate opinion.
Judgment accordingly.