Clarke v. Stumpf
Appellate Division of the Supreme Court of the State of New York
Cross-Appeals by the plaintiff, Thomas A. Clarke, and the defendants, Charles J. Stumpf and another, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 7th day of October, 1918, setting aside the verdict of a jury in plaintiff's favor for $1,650, and granting a new trial. The defendants appeal only from so much of said order as denies their motion to dismiss the complaint.
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Cross-Appeals by the plaintiff, Thomas A. Clarke, and the defendants, Charles J. Stumpf and another, from an order of the Supreme Court, made at the Kings County Trial Term and entered in the office of the clerk of the county of Kings on the 7th day of October, 1918, setting aside the verdict of a jury in plaintiff's favor for $1,650, and granting a new trial. The defendants appeal only from so much of said order as denies their motion to dismiss the complaint. The complaint alleges that on August 1, 1916, the Social Centres Corporation made and delivered to the plaintiff, at the city of New…
1Dissent
Blackmar, J. (dissenting):
I think the learned trial justice should also have dismissed the complaint upon the motion reserved. Neither the original nor the renewal note was duly presented. The necessary condition to an indorser’s liability did not, therefore, exist. On this we are agreed; and yet it is proposed to grant a new trial on the theory that the jury may find a waiver of presentment of the first note and hold the defendants liable thereon. The first objection is that waiver is not pleaded, and I think it is the law of this State that waiver may not be shown under a plea of…
Also in this document: Concurrence.
2Cases cited9 opinions
- Cady v. . BradshawNew York Court of Appeals · 1889
- Leffingwell v. WhiteNew York Supreme Court · 1799
- Leonard v. GaryNew York Supreme Court · 1833
- National Hudson River Bank v. ReynoldsNew York Supreme Court · 1890
- Bird v. KayAppellate Division of the Supreme Court of the State of New York · 1899
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