Beals v. Cameron
New York Supreme Court
Before Welles,Justice.—Complaint on a promissory note dated 4th Oct. 1848, given by Defendant to Lewis Wheélock or order, for $120, and endorsed by Wheelock to the Plaintiff. The answer of the Defendant admits the making of the note, and that Plaintiff is the owner of it, and that Defendant has not paid it, bnt sets up the following facts by way of avoidance.
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Before Welles,Justice.—Complaint on a promissory note dated 4th Oct. 1848, given by Defendant to Lewis Wheélock or order, for $120, and endorsed by Wheelock to the Plaintiff. The answer of the Defendant admits the making of the note, and that Plaintiff is the owner of it, and that Defendant has not paid it, bnt sets up the following facts by way of avoidance. That before this suit was commenced, learning that the note was in the hands of Thomas M. Howell, Esq., the Plaintiff’s attorney, for collection, Defendant called at the office of the said attorney and offered to pay the same, and…
1Opinion of the Court
Welles, Justice.
Admitting that the pendency of the first suit at the time of the commencement of the second, would be a defence to the latter, I think, upon the plea or answer of the Defendant, showing the pendency of the first suit, it was competent for the Plaintiff to discontinue the first suit, and a replication of such discontinuance is a good *416answer to the plea. The question is whether the reply was in fact true at the time it was made or put in. If at that time the first suit was legally discontinued, there was but one suit then depending, and consequently the reply was substantially…
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