Benjamin Shapiro v. Marstone Distributors

Appellant's answer to the complaint shall be served within 20 days after entry of the order to be made hereon. We find that
the failure of appellant to serve an answer was not willful and was excusable under the circumstances. In its proposed answer,
appellant raises the defense that plaintiff as landlord entered upon and used and occupied its premises under lease for his
own purposes and the purposes of his corporation, Commander Oil Corporation. Whether this defense is sufficient cannot be
decided summarily at this time. Plaintiff is suing to recover rent due under the terms of the lease. Appellant, a successor
to New Providence Corporation, which guaranteed the payment of rent, has standing to raise the defense, even though Marstone
Distributors, Inc., the primary tenant, defaulted in this action and did not attempt to open its default. A surety is not
bound by the default of the principal and may contest its liability to the indemnitee (Aeschlimann v. Presbyterian Hosp.,
165 N. Y. 296; Brescia Constr. Co. v. Walart Constr. Co., 245 App. Div. 105). Plaintiff contends that the defense is not valid
on its face, since the lease provides that no act by the landlord shall constitute an acceptance of a surrender of the premises
or a waiver of the rent accruing thereafter under the lease. But the lease further provides that the landlord might relet
the premises, in which event the rent received should be credited to the account of the tenant. At the pleading stage of the
action, the validity of the defense cannot be determined conclusively, but should await development of the facts (cf. Bedford
Ice Palace v. Brooklyn Trust Co., 246 App. Div. 734; Saracena v. Preisler, 180 App. Div. 348, 354; Schmidt v. Vahjen, 143
App. Div. 479, 480-481). Disposition Order reversed, with $10 costs and disbursements, and motion granted.