Fitzgerald v. Alexander & Mullen
New York Supreme Court
Error from the superior court of the city of New York. Alexander and Mullen declared on two promissory notes given to them by the defendant, one dated in August and the other in September, 1830, each payable in four months, amounting together to near Si000. The defendant pleaded an insolvent discharge from all debts owing by hitji, obtained in April, 1831, to which the plaintiffs replied a new promise, and the defendant took issue.
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Error from the superior court of the city of New York. Alexander and Mullen declared on two promissory notes given to them by the defendant, one dated in August and the other in September, 1830, each payable in four months, amounting together to near Si000. The defendant pleaded an insolvent discharge from all debts owing by hitji, obtained in April, 1831, to which the plaintiffs replied a new promise, and the defendant took issue. After proving the making of the notes, the plaintiffs called a witness who testified that in February, 1833, he presented to the defendant at New Orleans, a letter…
1Opinion of the Court
By the Court,
Cowen, J.
That it is sufficient to declare on the original promise, and insist on the new one by way of replication, was spoken of by Marcy, J. in Depuy v. Swart, 3 Wendell, 141, as well established. No authority has been cited to the contrary. Wait v. Morris, 6 Wendell, 394, is in point; and so is 14 Johns. R. 178, 180.
These notes fell due in 1830, and 1831. In the spring of the latter year, the defendant obtained his discharge, and soon after went to New-Orleans. Short of two years after, on being called on by the witness (Mullen) with a letter from the plaintiffs, he read it…
2Cases cited4 opinions
- Depuy v. SwartNew York Supreme Court · 1829
- Read v. HurdNew York Supreme Court · 1831
- Wait v. MorrisNew York Supreme Court · 1831
- Stafford v. BryanCourt for the Trial of Impeachments and Correction of Errors · 1829
3Cited by4 opinions
- Wolffe v. EberleinSupreme Court of Alabama · 1883
- Ketchum v. EbertWisconsin Supreme Court · 1873
- Hoyt v. SturgesSupreme Court of Connecticut · 1859
- Clark v. AtkinsonNew York Court of Common Pleas · 1853