Driggs v. Dwight
New York Supreme Court
• Error from the Erie common pleas. Dwight brought an action of assumpsit against Driggs, and declared against him for that on the 15th March, 1834, it was agreed between the parties that in case the plaintiff should procure one Calvin Nelson to become surety for the rent, the defendant would let to the plaintiff a tavern stand 'and all the appurtenances thereto belonging (excepting certain premises specified,) situate at Tonawanda, for the term of one year at a rent of…
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• Error from the Erie common pleas. Dwight brought an action of assumpsit against Driggs, and declared against him for that on the 15th March, 1834, it was agreed between the parties that in case the plaintiff should procure one Calvin Nelson to become surety for the rent, the defendant would let to the plaintiff a tavern stand 'and all the appurtenances thereto belonging (excepting certain premises specified,) situate at Tonawanda, for the term of one year at a rent of $275, payable quarterly, and deliver possession between the 15th April and the first day of May then following, and that a…
1Opinion of the Court
By the Court,
Cowen, J.
The objection of variance, as to the rent being payable quarterly, not having been raised on the trial, can not be urged upon a writ of error.
The plaintiff below was not bound to come with his lease executed, or to await the defendant’s time to execute a lease and renew the demand, after the latter had peremptorily refused to give possession. That any such effort would have been in vain and idle, is evident from the previous attempt of the defendant to procure the withdrawal of Nelson’s name as security. If the defendant was desirous to profit by the indulgence due to a…
2Cited by44 opinions
- Allison v. ChandlerMichigan Supreme Court · 1863
- Taylor v. . BradleyNew York Court of Appeals · 1868
- Mack v. . PatchinNew York Court of Appeals · 1870
- Bernstein v. . MeechNew York Court of Appeals · 1891
- Blanchard v. ElyNew York Supreme Court · 1839
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