Lane v. Salter
The Superior Court of New York City
This action was brought to recover upon a promissory note set out in the original complaint and alleged to be in the plaintiff’s possession, as follows: “ $1000. Hew York, July 1, 1856. Ten months after date, I promise to pay to the order of Jeremiah S. Lane, one thousand dollars, for value received, with interest from date. Anthony P. Salter. David B. Salter.”
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This action was brought to recover upon a promissory note set out in the original complaint and alleged to be in the plaintiff’s possession, as follows: “ $1000. Hew York, July 1, 1856. Ten months after date, I promise to pay to the order of Jeremiah S. Lane, one thousand dollars, for value received, with interest from date. Anthony P. Salter. David B. Salter.” The complaint alleged that in May, 1857, an action was commenced upon the note, in form against both of the makers, but that process was not served on David B. Salter ; that he did not appear in the action, and that in October, 1857,…
1Opinion of the Court
By the Court,
Robertson, Ch. J.
Upon the question of the sufficiency of the demurrer of the defendant, David B. Salter, the copy of the complaint served upon his attorney must control as to the character of the note in suit. Only two questions are presented on such demurrer. (1.) Whether a plaintiff can sue upon a claim which has been merged in a judgment against joint debtors, not those who were served with process, either with or without leave of the court. (2.) If the former, whether it is necessary to allege such leave in the complaint.
Bringing an action upon a judgment where it may be…
2Cases cited5 opinions
- Jackson ex dem. Simmons v. ChaseNew York Supreme Court · 1806
- Carman v. TownsendCourt for the Trial of Impeachments and Correction of Errors · 1830
- Eddy v. O'HaraNew York Supreme Court · 1835
- Oakley v. AspinwallNew York Court of Appeals · 1851
- President of the Bank of Columbia v. NewcombNew York Supreme Court · 1810
3Cited by5 opinions
- Culver v. Judge of the Superior CourtMichigan Supreme Court · 1885
- McCarron v. CahillCity of New York Municipal Court · 1885
- Guenther v. JacobsWisconsin Supreme Court · 1878
- McCarron v. CahillCity of New York Municipal Court · 1884
- Smith v. BrittonNew York Supreme Court · 1874