Bank of Salina v. Abbot
New York Supreme Court
I. Harris, on behalf of Joel Rathbone, moved 'for a perpetual stay of execution in this cause, in the hands of the sheriff of Erie county, and that the judgment be cancelled of record. The judgment was rendered September 3d, 1842, on a note made by Abbot to the order of W. Hodge, and endorsed by him and W. Hodge, Jr. for the accommodation of the maker.
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I. Harris, on behalf of Joel Rathbone, moved 'for a perpetual stay of execution in this cause, in the hands of the sheriff of Erie county, and that the judgment be cancelled of record. The judgment was rendered September 3d, 1842, on a note made by Abbot to the order of W. Hodge, and endorsed by him and W. Hodge, Jr. for the accommodation of the maker. P. Hodge purchased the judgment of the plaintiffs, and took an assignment of it, and afterwards, W. Hodge, Jr. one of the defendants and the last endorser on the note, purchased and took an assignment of the judgment from P. Hodge. Rathbone…
1Opinion of the Court
By the Court, Jewett, J.
At law it is well settled, that payment of a judgment to the plaintiff or the owner, by the defendant, or by one of several defendants, extinguishes it, although such payment be made by a defendant who is a mere surety. A court of law cannot substitute such surety in the place of the plaintiff and allow him to take execution upon such judgment. The judgment is regarded as extinguished against all. (Ontario Bank v. Walker, 1 Hill, 652.) An assignment by the plaintiff or owner of a judgment to one of several defendants in the judgment, works the same consequence.
Motion…
2Cases cited1 opinion
- Harger v. McCulloughNew York Supreme Court · 1846
3Cited by11 opinions
- Corey v. WhiteNew York Supreme Court · 1848
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- Goodyear v. WatsonNew York Supreme Court · 1851
- Bones v. AikenSupreme Court of Iowa · 1872
- Smith v. McGowanNew York Supreme Court · 1848
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