Legal Opinion

Smith v. . Erwin

New York Court of Appeals

Decided June 3, 1879PublishedCited by 15 opinions

Appeal from judgment of the General Term of the ("Supreme Court, in the third judicial department, in favor of ¡plaintiffs against defendant Erwin, entered upon an order denying a motion for a new trial, and directing judgment upon a verdict. The nature of the action and the facts are set forth sufficiently m the opinion. Plaintiffs released and discharged the defendant Erwin from, all liability by their own acts in relation to the execution.

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Appeal from judgment of the General Term of the ("Supreme Court, in the third judicial department, in favor of ¡plaintiffs against defendant Erwin, entered upon an order denying a motion for a new trial, and directing judgment upon a verdict. The nature of the action and the facts are set forth sufficiently m the opinion. Plaintiffs released and discharged the defendant Erwin from, all liability by their own acts in relation to the execution. (1 Throop’s Verbal Agreements, 27; R. S., part 3, chap. 6, tit. 5, art. 2, § 13; art. 1, § 10; New Code, § 1405; Eaton v. Southly, Willes’ R., 131;…

1Opinion of the Court

Earl J.

This action is brought upon a promissory note made by J. R. Ward and indorsed for his accommodation by the defendant Erwin. Two defenses are relied upon, which I will consider separately.

1. The action was commenced against both maker and indorser, and judgment was entered against the maker, Ward, by default for the whole amount of the note. On the same day judgment was entered against him, execution was issued and delivered to the sheriff thereon, the plaintiffs at the same time directing him not to use or act upon the execution or to make any levy, until further orders from them.…

2Cases cited2 opinions

  1. Walters & Farley v. Sykes & HarmanNew York Supreme Court · 1840
  2. Armstrong v. GarrowNew York Supreme Court · 1826

3Cited by15 opinions

  1. Plankinton v. GormanWisconsin Supreme Court · 1896
  2. Third National Bank of Malone v. ShieldsNew York Supreme Court · 1889
  3. Bickham v. KosminskySupreme Court of Arkansas · 1905
  4. Excelsior Needle Co. v. Globe Cycle WorksAppellate Division of the Supreme Court of the State of New York · 1900
  5. Rogers v. Detroit Savings BankMichigan Supreme Court · 1906

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