Garr v. . Martin
New York Court of Appeals
Appeal from the Common Pleas of the city and county of New York. The plaintiff sued, as assignee of one Patten, for money had and received by the defendant, to the use of Patten, under these circumstances: In 1846, the defendant, Martin, having obtained a judgment in the Superior Court of Hew York city, against Cornelius Kanouse; the latter sued out a writ of error to the Supreme Court, and Patten, as his surety, executed with him a joint and several bond, conditioned for…
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Appeal from the Common Pleas of the city and county of New York. The plaintiff sued, as assignee of one Patten, for money had and received by the defendant, to the use of Patten, under these circumstances: In 1846, the defendant, Martin, having obtained a judgment in the Superior Court of Hew York city, against Cornelius Kanouse; the latter sued out a writ of error to the Supreme Court, and Patten, as his surety, executed with him a joint and several bond, conditioned for the prosecution of the suit in error, and for paying the judgment and costs in case of affirmance. The judgment-…
1Opinion of the CourtSelden, J.
The law, no doubt, will imply a promise to refund money paid upon a judgment which has been subsequently reversed; but the question here is whether, in a case like this, the implication arises in favor of the surety who paid the money, or of the principal for whose benefit it was paid, and whose debt it went to discharge
This question is not without difficulty. It is insisted by the appellant, and" as I think justly, that no privity existed between Patten, the surety, and the plaintiff in the judgment; and hence, that no implied promise can arise between them. The execution by Patten of his…
2Cases cited1 opinion
- Butler v. WrightNew York Supreme Court · 1823
3Cited by14 opinions
- Scholey v. . HalseyNew York Court of Appeals · 1878
- In Re the Examination of DunfeeNew York Court of Appeals · 1916
- First National Bank v. Avery Planter Co.Nebraska Supreme Court · 1903
- Binck v. WoodNew York Supreme Court · 1864
- Mehlhop v. . Central Union Trust Co.New York Court of Appeals · 1923
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