Ely v. Kilborn
New York Supreme Court
Motion to set aside report of referees. The action was brought upon a promissory note made by the defendant Hiram W. Kilborn to Allen Kilborn. The defence set up was, that Hiram and Allen Kilborn were brothers, and interested with other heirs in the estate of their father, who had left some parol direction concerning its disposition.
Read the full summary
Motion to set aside report of referees. The action was brought upon a promissory note made by the defendant Hiram W. Kilborn to Allen Kilborn. The defence set up was, that Hiram and Allen Kilborn were brothers, and interested with other heirs in the estate of their father, who had left some parol direction concerning its disposition. That Hiram and Allen agreed between themselves that Hiram should pay Allen seven hundred dollars for a release of his interest in the estate, upon condition that the other heirs would settle their interest in the estate according to the direction of their father;…
1Opinion of the Court
By the Court, Whittlesey, J.
It is claimed that the referees erred in admitting testimony of the declarations of Allen Kilborn. If it was objected to, unquestionably the referee erred in admitting it. (Paige v. Cagwin, 7 Hill, 361.) But the objection, as stated in the report, goes to the whole defence and not to the admissibility of the mere mode of proving it. It was evidently intended to raise the question whether the defence set up was admissible, the plaintiff insisting that as the contract between the maker and payee of the note was in writing, being evidenced by the notes on one side and…
2Cited by7 opinions
- Masonic Mutual Benefit Ass'n v. BeckIndiana Supreme Court · 1881
- Crater v. . BiningerNew York Court of Appeals · 1871
- Penny v. GravesIllinois Supreme Court · 1850
- American Emigrant Co. v. ClarkSupreme Court of Iowa · 1878
- Bull'S Head Bank v. KoehlerNew York Marine Court · 1878
2 more not listed; retrieve them via the Exa API.