Wood v. . Fisk
New York Court of Appeals
Appeal from order of the General Term of the Supreme. Court in the first judicial department, reversing an order granting a motion to dismiss the complaint on tidal. (Eeported. below, 4 Hun, 525.) This action was brought against defendant as executrix of the last will and testament of James Fisk, Jr., deceased, to-enforce an undertaking signed by him. Plaintiff recovered a judgment in the Supreme Court in November, 1867, against one William Belden.
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Appeal from order of the General Term of the Supreme. Court in the first judicial department, reversing an order granting a motion to dismiss the complaint on tidal. (Eeported. below, 4 Hun, 525.) This action was brought against defendant as executrix of the last will and testament of James Fisk, Jr., deceased, to-enforce an undertaking signed by him. Plaintiff recovered a judgment in the Supreme Court in November, 1867, against one William Belden. An appeal was taken by defendant to the General Term, and for the purposes thereof an undertaking was given, executed by said Fisk and W. B.…
1Opinion of the CourtMiller, J.
The undertaking upon which this action was brought was manifestly a joint obligation on its face, and according to well settled rules applicable to such cases, the two obligors were mere sureties, and upon the death of one of them his estate was discharged both at law and in equity, and the survivor only was liable. In Getty v. Binsse, Exr. (49 N. Y., 385), it was held that upon the death of one of the makers of a joint promissory note, who was not liable for the debt irrespective of the joint obligation, but who signed the note simply as surety, his estate is absolutely discharged both in…
2Cases cited2 opinions
- McCluskey v. . CromwellNew York Court of Appeals · 1854
- Getty v. . BinsseNew York Court of Appeals · 1872
3Cited by24 opinions
- Seligman v. . FriedlanderNew York Court of Appeals · 1910
- Eckstein v. Massachusetts Bonding & InsuranceNew York Court of Appeals · 1939
- Bauer v. CabanneSupreme Court of Missouri · 1891
- McCoy v. PayneIndiana Supreme Court · 1879
- Graeter v. DeWolfIndiana Supreme Court · 1887
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