Phillips v. Lindley
Appellate Division of the Supreme Court of the State of New York
Appeal by the defendant, Charles S". Lindley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of "Westchester on the 7th day of March,. 1905, upon the decision of the court rendered after a'trial at the Westchester Trial Term; a jury having been waived.
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Appeal by the defendant, Charles S". Lindley, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of "Westchester on the 7th day of March,. 1905, upon the decision of the court rendered after a'trial at the Westchester Trial Term; a jury having been waived. A corporation and nine persons made a joint and several cognovit promissory note for .$5',000 at six months, payable to plaintiff at tile office of -defendant’s firm in Ohillieothe, O. Plaintiff purchased the note through the defendant, a dealer in commercial paper. When it fell…
1Opinion of the Court
Jenks, J.:
In Cumpston v. McNair (1 Wend. 457) the words were: “I guarantee the collection of this note to George Leitch,” and the court held that the very terms implied “ that measures to collect it from the principals were first to be used, and the defendant’s contract or guaranty was, that those measures should be successful; if not, that he would pay the note and costs.” (See, too, Craig v. Parkis, 40 N. Y. 181; Jackson v. Decker, 14 App. Div. 415.) I think that as the guaranty was one of collection, not payment, it *286was incumbent on the plaintiff to show due diligence against the principal…
2Cases cited7 opinions
- Craig v. . ParkisNew York Court of Appeals · 1869
- Cumpston v. McNairNew York Supreme Court · 1828
- Salt Springs National Bank v. SloanNew York Court of Appeals · 1892
- White v. CaseNew York Supreme Court · 1835
- Mead v. . ParkerNew York Court of Appeals · 1888
2 more not listed; retrieve them via the Exa API.
3Cited by8 opinions
- Banister v. SolomonCourt of Appeals for the Second Circuit · 1942
- Haimes v. SchonwitAppellate Division of the Supreme Court of the State of New York · 1945
- McAvoy v. Young HarronAppellate Division of the Supreme Court of the State of New York · 1966
- Jelliffe v. ThawCourt of Appeals for the Second Circuit · 1933
- Laurencelle v. LaurencelleAppellate Division of the Supreme Court of the State of New York · 1926
3 more not listed; retrieve them via the Exa API.