Maier v. Canavan
New York Court of Common Pleas
The plaintiff sued the defendants, Moran and Canavan, in the New York marine court upon an open account for goods sold and delivered. Moran made default, and Canavan defended upon the ground that his firm had dissolved, and that by the terms of the articles of dissolution, his partner, Moran, had agreed to pay all of the firm’s debts. That the plaintiff had been informed of the dissolution and its terms, and had been told “ to go to Moran and get his money.”
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The plaintiff sued the defendants, Moran and Canavan, in the New York marine court upon an open account for goods sold and delivered. Moran made default, and Canavan defended upon the ground that his firm had dissolved, and that by the terms of the articles of dissolution, his partner, Moran, had agreed to pay all of the firm’s debts. That the plaintiff had been informed of the dissolution and its terms, and had been told “ to go to Moran and get his money.” That after such agreement and notice, Canavan became in law a mere surety for his former partner, and that in consequence of the…
1Opinion of the CourtVan Hoesen, J.
The defendant utterly failed to bring his case within the rule under which a surety is relieved by the neglect of the creditor to prosecute the collection of his demand against the principal debtor. There was no legal evidence that the principal debtor was solvent when the surety requested the creditor to sue, and that he was insolvent after-wards. The case in the court below seemed to turn upon a supposititious case of affairs, rather than upon the case made by the evidence. In Huffman agt. Hurlburt (13 Wend., 377), it was decided that in order to release the surety, it must appear that the…
2Cases cited6 opinions
- Elwood v. DeifendorfNew York Supreme Court · 1848
- Ducker v. . RappNew York Court of Appeals · 1876
- Hart v. HudsonThe Superior Court of New York City · 1857
- Huffman v. HulbertNew York Supreme Court · 1835
- Singer v. TroutmanNew York Supreme Court · 1867
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