Allen v. Fosgate & Fosgate
New York Supreme Court
The action is against John Fosgate as maker, and against John Fosgate, junior, as guarrantor, of a promissory note. The complaint contains but one count, wherein the note and guaranty are set out; and avers that the guaranty .is endorsed on the note in these words:— “ For value received, I guarantee to John B. Eaton the payment of the within note when due. John Fosgate.”
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The action is against John Fosgate as maker, and against John Fosgate, junior, as guarrantor, of a promissory note. The complaint contains but one count, wherein the note and guaranty are set out; and avers that the guaranty .is endorsed on the note in these words:— “ For value received, I guarantee to John B. Eaton the payment of the within note when due. John Fosgate.” The defendants demurred to the complaint, and allege as grounds of demurrer, among others, that the defendants are not liable as joint debtors, and that several causes of action are improperly united.
1Opinion of the Court
Bockes, Justice.
If any doubt remained in regard to the question presented by the demurrer in this case, after the decision in De Ridder agt. Schermerhorn, (10 Barb. 638,) it was dispelled by the court of appeals in Brewster, agt. Silence, (4 Selden, 207.) That was an action against the guarantor of a promissory note—the guarranty being written under the note as follows:—
“ I hereby guarrantee the payment of the above note.
“ F. Silence.”
This was held to be a contract distinct from the note. The learned judge, delivering the opinion of the court, remarks, (page 215,) “ The note and guarrantee…
2Cases cited1 opinion
- De Ridder v. SchermerhornNew York Supreme Court · 1851
3Cited by5 opinions
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