Smith v. Tallcott
New York Supreme Court
Demurrer'to declaration. The plaintiffs Gerrit Smith, James Cochran and Catharine V. R. Cochran, declared against the defendants for that on the 21st March, 1836, at, The defendant Tallcott appeared alone and demurred to the first count of the declaration, assigning as special causes of demurrer, the following: 1st. The agreement signed by Mr. & Mrs. Cochran, has never been executed by Gerrit Smith. 2d.
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Demurrer'to declaration. The plaintiffs Gerrit Smith, James Cochran and Catharine V. R. Cochran, declared against the defendants for that on the 21st March, 1836, at, The defendant Tallcott appeared alone and demurred to the first count of the declaration, assigning as special causes of demurrer, the following: 1st. The agreement signed by Mr. & Mrs. Cochran, has never been executed by Gerrit Smith. 2d. Gerrit Smith is not a party to the agreement signed by the defendants, and cannot maintain a suit upon it. 3d. The defendants’ covenant to pay is founded upon Smith’s covenant to convey, and…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
There can be no doubt but that Smith- is properly made a co-plaintiff, and, according to the first case of Petrie v. Bury, 3 Barn. &. Cres. 353, the omission of his name would have been fatal. The intimation in Vernon v. Jefferys, 2 Strange, 1146, that the omission to seal might be cured by averment, seems to have been disregarded in the above'case; but it is conceded in *205Strange, that a party named in the covenant might join in the action, though he did not seal. 1 Saund. PI. & Ev. 390. 1 Selw. 351. 6 Wendell, 629.
The two instruments, I think, must be regarded as…
2Cases cited1 opinion
- Ehle v. PurdyNew York Supreme Court · 1831
3Cited by2 opinions
- Smith v. . KerrNew York Court of Appeals · 1849
- Titus v. AshSuperior Court of New Hampshire · 1851