Hyde v. Van Valkenburgh
New York Court of Common Pleas
Appeal by the defendant from an order made at Special Term directing judgment for the plaintiffs on the ground that defendant’s demurrer was frivolous; and also from the judgment entered on said order.
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Appeal by the defendant from an order made at Special Term directing judgment for the plaintiffs on the ground that defendant’s demurrer was frivolous; and also from the judgment entered on said order. The complaint sets out several notes made by the defendant and his then co-partner, one John R.'Cooper, under their firm name of Yan Yalkenburgh & Co.; that-the said co-partnership has been dissolved, and that since such dissolution, and within six years, the defendant had'made payments on said notes. The complaint also contained the following allegation : “ Plaintiffs further show, that the…
1Opinion of the Court
Dalt, F. J.
I agree that the order made at Special Term should be reversed. The cases of Bovill v. Wood, 2 M. & S., 23, and Slocum v. Hooker, 13 Barb., 536, and Wilmsby v. Linclenberger, 2 Rand., 478, are decisive upon the point that a plaintiff cannot anticipate that a defendant will avail himself of a defence of this character. He may have another defence to the note, and if he have, and establish it, he may plead the judgment as a bar to any other action, an advantage of which he would be deprived, if the plaintiff were allowed to bring the action against the other co-partner alone. The…
2Cases cited2 opinions
- Slocum v. Hooker & CatlinNew York Supreme Court · 1852
- Ludlow v. HackettNew York Supreme Court · 1820
3Cited by1 opinion
- Root v. HermanCity of New York Municipal Court · 1887