Brown v. Balde
New York Supreme Court
This was a motion for a new trial after a nonsuit at the circuit, and the exceptions ordered to be heard at the General Term in the first instance. The action was brought against the defendant, Balde, as the obligor, and Snell and Petrie, as sureties, in a certain bond given in 1852 to the plaintiff, then an infant, in proceedings before the Herkimer county judge, for the sale of the plaintiff’s real estate.
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This was a motion for a new trial after a nonsuit at the circuit, and the exceptions ordered to be heard at the General Term in the first instance. The action was brought against the defendant, Balde, as the obligor, and Snell and Petrie, as sureties, in a certain bond given in 1852 to the plaintiff, then an infant, in proceedings before the Herkimer county judge, for the sale of the plaintiff’s real estate. The complaint set forth the proceedings before the county judge and the appointment of the defendant, Balde, as special guardian to the plaintiff therein, by order entered in the usual…
1Opinion of the CourtTalcott, J.
This is clearly an action at law to recover an adjudicated balance upon the bond of the defendant, Balde, as guardian of the plaintiff. While it is true that the complaint contains substantially the allegations necessary to sustain it as a bill for an account in equity against the guardian, to which the sureties, though not necessary, would be proper parties (Cuddeback v. Keat and al., 5 Paige, 92), yet it contains additional allegations showing that the action cannot be maintained for an account, namely, the averment that an accounting has already been had before a court of competent…
2Cases cited3 opinions
- Starbuck v. MurrayNew York Supreme Court · 1830
- Baggott v. BoulgerThe Superior Court of New York City · 1853
- Cuddeback v. KentNew York Court of Chancery · 1835
3Cited by3 opinions
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- Hoffheimer v. StiefelNew York Supreme Court · 1896
- Haight v. BrisbinNew York Supreme Court · 1884