In re Dunn
New York Surrogate's Court
William L. Cole, claiming to be a creditor of this estate, filed his petition asking that the executors be required to account or pay his claim. On the return of the citation, objection was made to this application by the executors that the petitioner was not a creditor, and therefore could not compel an accounting.
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William L. Cole, claiming to be a creditor of this estate, filed his petition asking that the executors be required to account or pay his claim. On the return of the citation, objection was made to this application by the executors that the petitioner was not a creditor, and therefore could not compel an accounting. In the month of August, 1868, Alanson Dunn and Moses Dunn, as copartners in business, purchased-of petitioner a stock of goods, and in payment gave a note of which the following is a copy: “ $2500. Three years after date, for value received, we promise to pay to William L. Cole,…
1Opinion of the Court
The Surrogate.
This case is not affected by § 758 of the Code of Civil Procedure. The note having been made in 1868, the rights of the parties are to be determined by the law as it existed at the time of the transaction (Randall v. Sacket, 77 N. Y., 480). The obligation being joint, upon the death of Moses Dunn, his debt at law was discharged, and his estate was only liable in equity, and not in equity unless the petitioner is unable to collect the debt from the survivor (Pope v. Cole, 55 N. Y., 124; Hauck v. Craighead, 67 N. Y., 432). The petitioner must not only be unable to collect the debt…
2Cases cited7 opinions
- Barry v. . LambertNew York Court of Appeals · 1885
- Lawrence v. Trustees of Leake & Watts Orphan HouseNew York Supreme Court · 1845
- Bloodgood v. . BruenNew York Court of Appeals · 1853
- Pope v. . ColeNew York Court of Appeals · 1873
- McLaren v. . McMartinNew York Court of Appeals · 1867
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