Fowler v. . Palmer
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court in the third judicial department, in favor of plaintiff, entered upon an order affirming an order overruling a demurrer to the complaint. The complaint alleged that in the month of April, 1869, plaintiff executed and delivered to Margaret Palmer his promissory note for $300, payable one day after date. That in May he paid said note to the payee but omitted to take up the same.
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Appeal from judgment of the General Term of the Supreme Court in the third judicial department, in favor of plaintiff, entered upon an order affirming an order overruling a demurrer to the complaint. The complaint alleged that in the month of April, 1869, plaintiff executed and delivered to Margaret Palmer his promissory note for $300, payable one day after date. That in May he paid said note to the payee but omitted to take up the same. That upon the death of the payee the note came into and still is in defendant’s possession, who refuses to deliver up the same, but claims to hold it as…
1Per curiam
This action cannot be maintained in view of the decision of this court, in Allerton v. Belden (49 N. Y., 373), which was not reported when this case was decided at Special Term. The defence of payment was perfectly available to the plaintiff in an action upon the note, and no transfer could prejudice it. The plaintiff, under the provisions of the Eevised Statutes, can perpetuate the testimony of witnesses, in anticipation of a suit on the note, and no special circumstances exist, as in the case of McHenry v. Hazard (45 N. Y., 580), which authorize the court to entertain an action for its…
2Cases cited2 opinions
- Allerton v. . BeldenNew York Court of Appeals · 1872
- McHenry v. . HazardNew York Court of Appeals · 1871
3Cited by5 opinions
- Globe Mutual Life Ins. Co. v. . RealsNew York Court of Appeals · 1879
- Erickson v. First National BankNebraska Supreme Court · 1895
- American Water-Works Co. v. VennerNew York Supreme Court · 1892
- Brown v. BoydMassachusetts Supreme Judicial Court · 1893
- Pell v. McCabeDistrict Court, S.D. New York · 1918