It seems to be conceeded by the respondent that, “the facts now presented being practically unchanged,” or essentially different from those presented to us on the former appeal, (11 N. Y. Supp. 32,) we therefore think we should follow our former decision in disposing of the appeal now before us. Applying the doctrine of the opinion delivered, we think the learned trial judge erred in refusing a motion for a nonsuit, and in submitting the question of due diligence to a jury as one of fact, and that the verdict is not supported by the evidence. Our attention is called to Mead v. Parker, 41 Hun, 577, affirmed, 111 N. Y. 259, 18 N. E. Rep. 727. That was .an action upon a guaranty of collection of a bond and .mortgage. The suit was defended on the ground that the plaintiff has not been “reasonably dili.gent in his efforts to collect.” “At the trial the plaintiff introduced paroi evidence, for the purpose of showing that the defendant consented to the delay and waived performance of the condition of the guaranty, which the law implies, that the assignee of the bond and mortgage shall proceed with reasonable diligence to collect them;” and it was held “that the reception of paroi proof, tending to show such consent and' waiver subsequent to the -making of the guaranty, was not error.” See opinion of Smith, P. J., 41 Hun, 578. In the course of the opinion in the court of appeals it is said: “Ho .man could say upon an issue of due diligence that a plaintiff had failed to exercise it by commencing his action against the principal debtor, when, in justification of such failure, he showed a paroi request of the surety to refrain from the commencement of the action until a certain time had elapsed within which he said he had no doubt that the principal debtor would pay'. It certainly is competent evidence, as showing the circumstances inexistence, which rendered the action of the plaintiff reasonably .diligent in prosecuting the suit ;to foreclose the mortgage, and it did not in any degree alter the contract which was made by the defendant in writing.” See 111 N. Y. 263, 18 N. E. Rep. 728. In the case in hand no acquiescence was shown or consent given by the • defendant to any loches, omissions, or delays of the plaintiff. In the case of Mead v. Parker, supra, the evidence relating to the acquiescence or consent -ot the creditor was of such a character as to warrant the submission of the question to the jury in respect thereto. The finding of the jury of “a waiver toy the defendant of strict performance on the part of the plaintiff” was upheld, it being said, near the close of the opinion, “there was sufficient evi- ■ dence in the case.to support the verdict.” We think the case in hand differs from that one. In Beardsley v. Fowler, 23 Barb. 628, it was held: “nothing will excuse the party holding the guaranty from the performance of this -condition, except the act of the guarantor himself. It will notsuffiee forsueh party to say it would have been of no use to prosecute.” That was an action upon a guaranty of a bond and mortgage, and it was held that the waiver by the guarantor of the proceedings to foreclose the mortgage did not excuse the assignee from proceeding against the mortgagor as stated upon the bond. In .the course of the opinion it is said: “There is not evidence sufficient to be *308submitted to the jury of any waiver, excepting to what related to the foreclosure of the mortgage; the evidence touching the waiver relates entirely to the mortgagee;” and a nonsuit was upheld. In Tiffany v. Willis, 30 Hun, 266, it was said by this court, in the course of the opinion delivered in that ease, viz.: “As there was no dispute about the situation and circumstances of the parties, and no question as to the steps which have been taken or omit-' ted by the guaranty against the principal debtor, the question of'due diligence was a question of law. Burt v. Horner, 5 Barb. 501.” Following the rea-, saning of our former opinion in this case, we feel constrained to set aside the verdict and order a new trial. 5 Hun, 265. Judgment and order reversed upon the exceptions, and a new trial ordered, with costs to abide the event.
All concur.