Fox v. Cowan

Judgments reversed on the law and a new trial granted, with costs to the appellant to abide the event. Memorandum: In this action, there was at issue the question as to whether or not the plaintiff and his assignor became sureties by virtue of the instruments executed December 14, 1939, for certain debts- of the defendant Rochester Lithographing Company to the defendants Franklin Cowan Paper Co., Inc., and Interehemical Corporation. The Trial Court improperly excluded testimony offered to show the true relationship among the parties to this action as created by the instruments executed December 14, 1939. *786As a surety and as the assignee of a surety, the plaintiff would be entitled to an accounting by the defendants of their transactions in reference to and with the defendant Rochester Lithographing Company from December 14, 1939, to the time of trial. All concur, except Dowling, J., who dissents and votes for affirmance. (The three judgments dismiss the complaint as to the respective Sets of defendants, in an action for an accounting.) Present — Taylor, P. J., Dowling, Harris, McCurn and Larkin, JJ.