Bendit v. Annesley & Ferris
New York Supreme Court
APPEAL from a judgment entered in favor of the defendants for costs, on a trial at the circuit. The plaintiffs, on the 1st day of November, 1862, brought an action on a promissory note against the defendants. On the same day, and after service of the complaint, the defendants sent their certified check to the plaintiffs for the amount of the note, interest and protest, which the plaintiffs unqualifiedly accepted.
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APPEAL from a judgment entered in favor of the defendants for costs, on a trial at the circuit. The plaintiffs, on the 1st day of November, 1862, brought an action on a promissory note against the defendants. On the same day, and after service of the complaint, the defendants sent their certified check to the plaintiffs for the amount of the note, interest and protest, which the plaintiffs unqualifiedly accepted. On the 17th day of November following, the plaintiffs duly notified the defendants that payment of the face of the note, interest and protest, would not settle the action, hut that…
1Opinion of the Court
By the Court,
Geo. G. Barnard, J.
As the law stood prior to the code, a payment after suit brought had to be pleaded specially in bar of the further continuance of the action, and not in bar of the action generally. (Boyd v. Weeks, 2 Denio, 321.) This was the doctrine at the time when every plea was required to have a formal conclusion. Under the code, no formal conclusion is required, and no judgment or relief is required to be prayed for, except when the defendant asks affirmative relief against the plaintiff.
The answer in this case specially set up the payment, and would have been good under…
2Cases cited1 opinion
- Boyd v. WeeksNew York Supreme Court · 1845
3Cited by6 opinions
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- U. S. Life Insurance v. GageNew York Supreme Court · 1890
- Himberg v. RogersAppellate Terms of the Supreme Court of New York · 1903
- Clement v. GrantCity of New York Municipal Court · 1888
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