Esselstyn v. Weeks
New York Court of Appeals
Appeal from a judgment of the court of common pleas for the city and county of New-York. The action was commenced on the 30th of April, 1851. The complaint alleged that the defendant executed to the plaintiff a note which was set out in terms. It bore date June 29, 1841; and thereby the defendant promised on demand to pay the plaintiff or bearer one hundred and twenty-five dollars and sixty-three cents with interest.
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Appeal from a judgment of the court of common pleas for the city and county of New-York. The action was commenced on the 30th of April, 1851. The complaint alleged that the defendant executed to the plaintiff a note which was set out in terms. It bore date June 29, 1841; and thereby the defendant promised on demand to pay the plaintiff or bearer one hundred and twenty-five dollars and sixty-three cents with interest. The complaint further averred that the defendant, although requested to do so, had not paid the note, and demanded judgment for its amount. The defendant, by his answer, alleged…
1Opinion of the Court
Gardiner, Ch. J.
Two questions are presented in this case: 1. Whether the pleadings will admit the evidence offered, if competent to charge the defendant; and 2. Whether the Code of 1848, which requires a written promise, applies to the case.
As to the first question, the pleadings, according to the former practice, would authorize the admission of the proposed evidence. (14 Johns. R., 178; 9 Wend., 306.) The rule was established in conformity with the earlier English decisions, which made the statute of limitations presumptive evidence of payment only, to be rebutted by any evidence tending to…
2Cases cited2 opinions
- Wadsworth v. ThomasNew York Supreme Court · 1849
- Livingston v. OstranderNew York Supreme Court · 1832