Christal v. Kelly
New York Supreme Court
Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury. On 16th July, 1870, the plaintiffs, as executors, commenced an action in this court against William Ohristal and Joseph Struthers to recover the sum of $6,798.52, with interest from 1st January, 1870, being the amount of a promissory note made and delivered to the executors by the firm of Ohristal & Struthers, of which William Ohristal and Joseph Struthers…
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Appeal from a judgment in favor of the plaintiffs, entered upon the trial of this action by the court without a jury. On 16th July, 1870, the plaintiffs, as executors, commenced an action in this court against William Ohristal and Joseph Struthers to recover the sum of $6,798.52, with interest from 1st January, 1870, being the amount of a promissory note made and delivered to the executors by the firm of Ohristal & Struthers, of which William Ohristal and Joseph Struthers were members. On 18th July, 1870, a warrant of attachment was issued in that action against the property of William…
1Opinion of the Court
Barnard, P. J.:
A surety upon an undertaking given to release an attachment cannot, after judgment, object to an amendment to the complaint made by consent and without the order of the court adding a defendant. It may w'ell be questioned whether in point of fact the additional defendant made any change in the condition* of the parties. The action was against the members composing a firm, upon a note made by the firm as such and under the firm name, and the omitted defendant was one of the members of the firm.
The omission to obtain the order permitting the amendment is cured by the statute. (2…
2Cases cited2 opinions
- Scofield v. . ChurchillNew York Court of Appeals · 1878
- Gilmore v. CrowellNew York Supreme Court · 1873