The plaintiff in this action seeks to recover the sum of $3,500 together with interest thereon of both defendants. His cause of action against the defendant Whitman is based on a bond executed by him for the payment of said sum to the defendant Faunce, and his cause of action against the defendant Faunce is on an assignment in writing of said bond by Faunce to the plaintiff; and it is alleged that he “ guaranteed to the plaintiff the payment of said bond, according to its tenor.”
The defendants demurred on the ground that causes of action have been improperly united. The plaintiff thereupon moved for judgment on the pleadings and his motion was granted. The appeal, therefore, presents but a single question, namely, whether these two causes of action have been improperly united.
Undoubtedly the assignor of the bond guaranteed, not the collection of the amount, but the payment of the bond; and he became hable to the plaintiff on his guaranty the moment the default occurred. The plaintiff was then in a position to sue- either of the defendants. . The liability of the obligor was created by the bond itself, and that of the assignor by the assignment by which he assumed liability for the performance of the obligation; and that is the point decided in Loos v. McCormack (107 App. Div. 8), which is analogous in that respect, but is not decisive of the question presented by this appeal; which is whether this liability, which is several, may be enforced in one action, where the objection is timely and properly taken. The defendants are not hable on the same instrument, and, therefore, ■ section 454 of the Code of Civil Procedure does not authorize their joinder. That section embraces a several liability, where one party is hable as a principal and another as a guarantor or surety, but, with the exception of bills of exchange and promissory notes, only where the liabihty in the latter capacity is created by the same contract or instrument in writing, by the guarantor or surety becoming a party thereto originally, or becoming, in effect, a party thereto and liable thereon, subsequently. (Carman v. Plass, 23 N. Y. 286; Barton v. Speis, 5 Hun, 60; Roehr v. Liebmann, 9 App. Div. 247; De Ridder v. Schermerhorn, 10 *864Barb. 638; Tibbits v. Percy, 24 id. 39; International Text Book Co. v. Fox, 149 App. Div. 369; Draper v. Snow, 20 N. Y. 331; Tuton v. Thayer, 47 How. Pr. 180.)
. I, therefore, vote for reversal of the judgment.
Dowling, J., concurred.
Order affirmed) with costs.