Kohler v. Mattlage
The Superior Court of New York City
This is an appeal by the defendants, Mattlage and Wedemeyer, from a judgment for $3,602.49, rendered against the defendants at a trial before the court at special term.
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This is an appeal by the defendants, Mattlage and Wedemeyer, from a judgment for $3,602.49, rendered against the defendants at a trial before the court at special term. The action is upon a bond made by the defendant Chapman, in the penal sum of $6,000, conditioned for the payment by Chapman, within nine months, of the debts of the firm, composed of the plaintiff’s testator, John F. Kohler, and himself, and in which the defendants, Mattlage and Wedemeyer, the appellants, joined as sureties. Various defenses were interposed' by the appellants. The court found at the trial as matter of fact:…
1Opinion of the Court
By the Court.—Curtis, Ch. J.
The appellants contend that the court erred in denying their preliminary motion at the trial, to dismiss the complaint. They urge that the complaint does not show that the plaintiff has been damnified or incurred any legal liability in consequence of any matter therein alleged, and that, to entitle the plaintiff to recover, it was necessary to show, either actual damages sustained, or a fixed legal liability incurred.
There is a difficulty with this claim of the appellants. Their bond is a departure from a simple contract to indemnify against damage. It is…
2Cases cited10 opinions
- Belloni v. . FreebornNew York Court of Appeals · 1875
- Churchill v. HuntNew York Supreme Court · 1846
- Board of Supervisors v. . OtisNew York Court of Appeals · 1875
- Bridgeport Fire & Marine Insurance v. WilsonNew York Court of Appeals · 1866
- Salmon v. BennettSupreme Court of Connecticut · 1816
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