Wilkins v. American Surety Co.
Appellate Terms of the Supreme Court of New York
Appeal from an order of the Municipal Court of the city of New York, borough of Manhattan, seventh district, denying defendant’s motion for a new trial, on the ground of newly-discovered evidence.
1Opinion of the CourtFinch, J.
Plaintiff recovered a judgment against defendant upon a bond given by defendant in a replevin action in which action plaintiff was defendant and was successful therein for lack of proof on the part of the party who was plaintiff. Said action was dismissed without prejudice. It follows that the *590ownership of the chattels in question in the other action was not-adjudicated upon the merits. When, therefore, defendant surety was sued on its bond because of the failure of plaintiff in the replevin action to successfully prosecute the same, the surety would be entitled to showT that plaintiff in the…
2Cases cited2 opinions
- Mendelson v. IrvingAppellate Division of the Supreme Court of the State of New York · 1913
- Fielding v. SilversteinSupreme Court of Connecticut · 1898