Legal Opinion

Lowerre v. Vail

New York Supreme Court

Decided September 15, 1857Published

Motion for leave to discontinue without payment of costs. Three actions were brought by the plaintiff, each against the defendant, as endorser of a promissory note. The defence in each action was, that the endorsement was a forgery. On the trial of the action first brought to trial the plaintiff recovered a verdict.

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Motion for leave to discontinue without payment of costs. Three actions were brought by the plaintiff, each against the defendant, as endorser of a promissory note. The defence in each action was, that the endorsement was a forgery. On the trial of the action first brought to trial the plaintiff recovered a verdict. On the trial of the second, the defendant offered himself as a witness, under section 399 of the Code, as amended 1857, to disprove the genuineness of the endorsement, and prevailed upon that question, and a verdict was rendered in his favor. The plaintiff now moved, in the third…

1Opinion of the CourtBibdseye, J.

The plaintiff in this case does not sue en autre droit;—the action is by the Bank, and solely for its benefit, though in the name of its president. It cannot be likened to a suit by an executor, or administrator, or the assignee appointed in the course of insolvent proceedings (Reeder v. Seely, 4 Cow., 548; Phenix v. Hill, 3 Johns., 249; Purdy v. Purdy, 5 Cow., 14). The protection which these cases had extended to executors and administrators was confirmed by statute (2 Rev. Stats., 615, § 17); but it was limited to cases where they “ necessarily prosecuted” in the right of their testator or…

2Cases cited6 opinions

  1. People ex rel. Bailey v. Judges of the Albany Mayor's CourtNew York Supreme Court · 1833
  2. Purdy v. PurdyNew York Supreme Court · 1825
  3. Barker v. BakerNew York Supreme Court · 1826
  4. Phœnix v. HillNew York Supreme Court · 1808
  5. Reeder v. SeelyNew York Supreme Court · 1825

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