That Jones became a surety when Guthrie assumed the mortgage, is no longer an open question. In the case of Meyer v. Lathrop (10 Hun, 60), this point was erroneously decided.
The bond and mortgage having been given by the same person, at the same time, and for a single purpose, they constitute but one contract. (Marsh v. Dodge, 66 N. Y., 537 ; Jones on Mort., §§ 71, 72.) The abrogation of the clause in the mortgage in respect to releasing portions of the mortgaged premises from time to time, was a material alteration of the contract, for by that act the owner of the mo: fcgaged premises, who was primarily liable for the payment of the mortgage debt, was deprived of a valuable privilege in the mode of discharging such debt, and the creditor thereby acquired a more marketable and stringent security for such payment. It js very true, that in case the surety should pay the mortgage debt, he would thereby acquire the right to be subrogated to the rights of the plaintiff, and would thus obtain the benefits which the .creditor derived from the change which has been made in the mortgage. But sureties do not ordinarily prefer such a mode of indemnity. It is better for them that the principal debtor should discharge the debt; and any act that impairs the means which he had provided, or detracts from the facilities afforded him for that purpose, is injurious to the surety. But however that may be, it is a settled rule that the court will not inquire whether the *581alteration of the contract be beneficial or injurious to the surety. It is sufficient that the alteration is a material one. The surety can be held liable only according to the very terms of his contract. (Miller v. Stewart, 9 Wheat., 680; Bangs v. Strong, 7 Hill, 250; Grant v. Smith, 46 N. Y., 93; Calvo v. Davies, Ct. App., April, 1878.) He has a right to insist upon the exact performance of any condition for which he has stipulated, whether others would consider it material or not. (Per Denio, J., Gates v. McKee, 3 Ker., 237.) The judgment must be affirmed, with costs.
Present — Barnard, P. J., and Gilbert, J.Judgment affirmed, with costs.