Legal Opinion

Akin v. Van Wirt

Appellate Division of the Supreme Court of the State of New York

Decided January 15, 1908PublishedCited by 4 opinions

Appeal by the defendant, P. Campbell Van Wirt, as executor, etc., from a judgment of the Supreme Court in favor of this plaintiff, entered in the office of the clerk of the county, of Rensselaer on the 3d day of October, 1906, upon the decision of the court, rendered after a trial at the Rensselaer Trial Term, a jury having been waived. The action-is upon a promissory note. Upon Januaiy 1, 1895, the firm of W. IT.

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Appeal by the defendant, P. Campbell Van Wirt, as executor, etc., from a judgment of the Supreme Court in favor of this plaintiff, entered in the office of the clerk of the county, of Rensselaer on the 3d day of October, 1906, upon the decision of the court, rendered after a trial at the Rensselaer Trial Term, a jury having been waived. The action-is upon a promissory note. Upon Januaiy 1, 1895, the firm of W. IT. Akin & Co., 'composed of William H. Akin, David Akin, the appellant’s testator, and Albert Akin, for value, delivered to John II. Akin, who was the father of Albert Akin, their…

1Opinion of the Court

Smith, P. J.:

Various defenses are urged to the plaintiff’s claim. We are unable to find any evidence.to sustain tlpe defense of a novation. It nowhere appears that David Akin, or his estate, has been expressly or voluntarily released by the plaintiff. Upon J anuary 18, 1896, when David Akin sold. out to Albert Akin and Albert Davitt, they assumed the debts of the firm. They thereupon became primarily liable for ■ this indebtedness, and David Akin as well as William H. Akin were simply sureties. I cannot see that it matters as to what transpired when William H. Akin went out of the firm upon…

2Cases cited3 opinions

  1. Winchell v. . HicksNew York Court of Appeals · 1859
  2. McMullen v. . RaffertyNew York Court of Appeals · 1882
  3. Littlefield v. . LittlefieldNew York Court of Appeals · 1883

3Cited by4 opinions

  1. Peoples Trust Co. v. O'NeilNew York Court of Appeals · 1937
  2. First National Bank v. TerryCalifornia Court of Appeal · 1930
  3. Drake v. HodgsonAppellate Division of the Supreme Court of the State of New York · 1924
  4. Erickson v. HusemollerSupreme Court of Minnesota · 1934

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