Binck v. Wood
New York Supreme Court
THIS is an action by the surety on a $350 note to recover $100 paid thereon by his principal, which the payee omitted to credit, but sued the maker and surety, recovered judgment for the full amount (the suit not being defended,) issued execution thereon, and this plaintiff, the surety, paid the judgment and then brought this action to recover, back the $100. The principal in the note also assigned the' same claim to the plaintiff.
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THIS is an action by the surety on a $350 note to recover $100 paid thereon by his principal, which the payee omitted to credit, but sued the maker and surety, recovered judgment for the full amount (the suit not being defended,) issued execution thereon, and this plaintiff, the surety, paid the judgment and then brought this action to recover, back the $100. The principal in the note also assigned the' same claim to the plaintiff. The referee reported in favor of the plaintiff, and the defendant appealed.
1Opinion of the Court
By the Court,
Peckham, J.
It is impossible, I think, to sustain this report upon any principle known to the law. It seems to be based upon a decision of this court in Smith v. Weeks, (26 Barb. 463.) The opinion there was delivered by Justice Harris, and it sustains this case. Had the learned justice, in his opinion, examined the authorities in this state and still arrived at the same conclusion, we should feel bound by the decision. But no authority in this state tending to such a result is alluded to, nor is a principle stated which we think can sustain this action.
The authorities cited and…
2Cases cited12 opinions
- Loring v. MansfieldMassachusetts Supreme Judicial Court · 1821
- Dey v. DoxNew York Supreme Court · 1832
- White v. . MerrittNew York Court of Appeals · 1852
- Rowe v. SmithMassachusetts Supreme Judicial Court · 1820
- Garr v. . MartinNew York Court of Appeals · 1859
7 more not listed; retrieve them via the Exa API.
3Cited by11 opinions
- Ulrich v. DrischellIndiana Supreme Court · 1882
- Litch v. ClinchIllinois Supreme Court · 1891
- Maddux v. County BankCalifornia Supreme Court · 1900
- Schneider v. SchneiderNew York Supreme Court · 1953
- Turlington v. SlaughterSupreme Court of Alabama · 1875
6 more not listed; retrieve them via the Exa API.