Leask v. Dew
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, J. Harvie Dew, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 21st day of Hovember, 1904, upon the report of a referee. This action was brought to recover upon a promissory note given by the defendant to the plaintiffs’ testator.
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Appeal by the defendant, J. Harvie Dew, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Hew York on the 21st day of Hovember, 1904, upon the report of a referee. This action was brought to recover upon a promissory note given by the defendant to the plaintiffs’ testator. The note was dated Hovember 23, 1901, whereby the defendant promised to pay to the order of Oliver W. Buckingham, the testator, one year after date, the sum of $5,000, with interest at six per cent. Oliver W. Buckingham died testate on the 31st day of…
1Opinion of the Court
Hatch, J.:
The plea of tender is unavailing, as it was not made to appear that any money was produced at the time when the tender was claimed to have been made, or that any formal requisites were observed sufficient to make a valid tender. It was said in Eddy v. Davis (116 N. Y. 247): “ A tender imports not only readiness and ability to perform, but actual production of the thing to be delivered. The formal requisite of a tender may be waived, but to establish a waiver there must be an existing capacity to perform.” The only thing disclosed by the evidence is- that the testator did not intend…
2Cases cited2 opinions
- Eddy v. . DavisNew York Court of Appeals · 1889
- Dimon v. KeeryAppellate Division of the Supreme Court of the State of New York · 1900
3Cited by12 opinions
- New York, N.H. & H.R. Co. v. Reconstruction Finance CorporationCourt of Appeals for the Second Circuit · 1950
- Bank of the United States v. ManheimNew York Court of Appeals · 1934
- St. George's Society v. SawyerSupreme Court of Iowa · 1927
- Carns v. Commonwealth Life Ins. Co.Supreme Court of Alabama · 1936
- Farmer v. FarmerSupreme Court of Virginia · 1953
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