The opinion
Davis, P. J.
All allegations of fraud.or imposition on the appellant in procuring the instrument of the 6th of August, 1869, having been distinctly withdrawn during the trial (as appears at fob 202 of the case), that paper stood, as the court then remarked, unimpugned and upon its legal effect. It was upon this instrument that the learned judge, at special term, predicated the defendant *33 Alcott’s liability, as surety for plaintiff, to the defendant Wehrum. The instrument recited that Alcott had become, and was, security for the payment of the sum of $2,000 to the defendant Wehrum, on the 1st of May, 1870, and provided that Lockwood should hold the mortgage of Kreitz as an indemnity to Alcott upon his liability as such. It was signed and sealed by both the principal and surety. This was, in our opinion, sufficient to take the promise of Alcott out of the operation of the statute of frauds. The reasons given by Brady, J., in his opinion at special term, are quite satis *34 factory to us on this point, and we adopt them as expressing what we deem to be the law.
The effect of the tender of the money due on the $3,000 mortgage is not material to be discussed in this case, so far as relates to the $30,000 mortgage, held as collateral. When the suit was commenced the Kreitz mortgage was properly held by Lockwood as collateral to the balance claimed to be unpaid on the $30,000 mortgage, but, as between the appellant and Alcott, the Kreitz mortgage was also held to secure Alcott on his obligations as surety for appellant’s debt to'Wehrum. The right and duty of Lockwood to still hold the Kreitz mortgage as assignee, for Alcott’s benefit, under the instrument of 6th of August, would still remain after the extinguishment of the debt, to which he held it as collateral for his own benefit. Lockwood is not denying, but affirming, this liability, and thereby ratifying the act of his agent Brown in receiving the agreement clothing him with that power.
Alcott, who is also a defendant in the suit, makes no question whatever of the validity of his agreement to be security. How far, under such circumstances, the principal debtor, who has placed in his hands, or in the hands of a third person, collateral to indemnify him against such liability, can be. permitted to raise the question, it is not necessary to determine. Hpon the facts found by the judge, we are of opinion that his conclusion of law was sound, and that the judgment rendered thereupon should be affirmed.
Daniels and Westbbook, JJ., concurred.
Judgment affirmed.