Toles v. . Adee
New York Court of Appeals
Appeal from judgment of the- General Term of the Supreme Court, in the third judicial department, entered upon an order made May 2, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. This action was brought against defendants as executors, etc., of Stephen B. Adee, deceased, upon an undertaking executed by said testator. The case is reported upon a former appeal in 84 IT.
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Appeal from judgment of the- General Term of the Supreme Court, in the third judicial department, entered upon an order made May 2, 1882, which affirmed a judgment in favor of plaintiff, entered upon a verdict, and affirmed an order denying a motion for a new trial. This action was brought against defendants as executors, etc., of Stephen B. Adee, deceased, upon an undertaking executed by said testator. The case is reported upon a former appeal in 84 IT. Y. 222. The undertaking recited in substance the arrest of Augustus "W". Adee by virtue of an order of arrest issued in an action wherein…
1Opinion of the CourtRapallo, J.
On the former appeal in this case (84 hi. Y. 222) it was held by this court that the undertaking of the defendant’s testator, upon which the action was brought, was not valid as a statutory undertaking of 'bail taken by the sheriff, and, if regarded as having been so taken, it could not be enforced ; but that if not taken by the sheriff colore officii, but taken by the plaintiff’s attorney, in pursuance of an agreement between him and the obligor, it constituted a contract between the parties, valid by the common law, and could be enforced as such. ,
That so treating it, the defendant’s…
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