Brooklyn Bank v. De Grauw
New York Supreme Court
This was an action of assumpsit, tried vat the Kings circuit, in April, 1839 before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought upon a note for $1200, dated 27th' April, 1837, made by Wm. L. De Grauw, payable to the order of Walter N. De Grauw, ninety days after date. It was endorsed by the payee and another person, and a joint action brought against the maker and endorsers. The making, endorsement and protest, were admitted.
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This was an action of assumpsit, tried vat the Kings circuit, in April, 1839 before the Hon. Ogden Edwards, one of the circuit judges. The suit was brought upon a note for $1200, dated 27th' April, 1837, made by Wm. L. De Grauw, payable to the order of Walter N. De Grauw, ninety days after date. It was endorsed by the payee and another person, and a joint action brought against the maker and endorsers. The making, endorsement and protest, were admitted. The defendants then proved, that in June, 1837, the drawer of the note made a proposition to the bank, that if they would give up the notes…
1Opinion of the Court
Nelson, Ch. J.
By the Court, Assuming that the substituted agreement for securing the bank debt had been fully proved, there is still an in*343superable difficulty in setting it up in bar of the action. It is hut an accord executory. Tender of performance was proved, but this has never been *held equivalent to an execution for the purpose of [* 344 ] this defence. 5 Johns. R. 392. 6 Wendell, 390. 19 id. 408, and cases cited. We have been referred to Case v. Barber, Sir T. Raym, 450, and T. Jones, 158, S. C. as an authority for the plea of an accord without satisfaction, but with tender. That case…
2Cases cited2 opinions
- Russell v. LytleNew York Supreme Court · 1831
- Sheldon v. SkinnerNew York Supreme Court · 1830
3Cited by3 opinions
- Tilton v. AlcottNew York Supreme Court · 1853
- Peterson v. WheelerSupreme Court of Missouri · 1870
- Wood v. RabeThe Superior Court of New York City · 1885