The views expressed by Justice VAN BeuNT are correct. The defendant Leslie having assumed the payment of the mortgage executed by the defendant Davies, became a principal debtor, and the relation created between him and his grantor, Davies, was that of principal and surety. The record of the deed of Davies to Leslie was notice of this relation to the plaintiff herein, who holds the mortgage by assignment. It follows that the plaintiff, having extended the time of payment for Leslie, discharged Davies, the principal. (Lawrence v. Fox, 25 N. Y., 268 ; Burr v. Beers, 24 id., 178; Billington v. Wagoner, 33 id., 31, and cases cited; Smith v. Townsend, 25 id., 479; Garnsey v. Rogers, 47 id., 233.) The case of Perkins v. Squires (1 N. Y. S. C., 620), so far as it conflicts with this view, is overruled. The decision in that case, though in seeming collision with the conclusion herein expressed, in fact rests upon the proposition that it did not appear by the answer whether the extended period had expired or not. The surety cannot be affected by any reservation contained in the agreement extending the time, unless he consented to it. The rule is absolute, that there shall be no transaction with the principal debtor without acquainting the person who has a part interest in it. The proposition that the creditor can enlarge the time of payment and protect himself by reserving his rights against the surety in the agreement for the extension, cannot be sustained on principle.
Such a rule would abrogate the correlative one in favor of the surety, that his contract cannot be enlarged without his consent. It would be, if the creditor could make a private agreement with the principal debtor, and legally extend the time of payment by a reservation, without notice to the surety.
*224The order must be affirmed, with ten dollars costs and disbursements.
Davis, P. J., and Daniels, J., concurred.Order affirmed, with ten dollars costs and disbursements.