Davis v. . Toulmin
New York Court of Appeals
Appeal from judgment of the General Term of the City Court of Brooklyn, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. This was an action for contribution. The parties were co-sureties for one Tuck upon an undertaking given ■ on appeal; the judgment was affirmed. Judgment was recovered upon the undertaking, which plaintiff paid.
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Appeal from judgment of the General Term of the City Court of Brooklyn, affirming a judgment in favor of plaintiff, entered upon a decision of the court on trial without a jury. This was an action for contribution. The parties were co-sureties for one Tuck upon an undertaking given ■ on appeal; the judgment was affirmed. Judgment was recovered upon the undertaking, which plaintiff paid. Defendant offered to prove on the trial that plaintiff was indebted to Tuck on account to an amount much larger than the amount paid by plaintiff. This was objected to ; objection sustained, and defendant’s…
1Opinion of the Court
Church, Ch. J.
The action was for contribution between co-sureties. The exception raises the question whether in such an action, it is competent for the defendant to avail himself of an indebtedness of the plaintiff to the principal, as a defense.
The authorities are decisive against it. ( O’Blemis v. Karing, 57 N. Y., 649; Lasher v. Williams, 55 id., 619; Springer v. Dwyer, 50 id., 19.) If the co-surety suing for contribution has received any money or property as payment, or security from the principal, he will be obliged to account for the same, but a simple indebtedness to the principle…
2Cited by2 opinions
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