Leask v. Dew
Appellate Division of the Supreme Court of the State of New York
Appeal from Judgment on Report of Referee. Action by George Leask and others, as executors of the estate of Oliver W. Buckingham, deceased, against J. Harvie Dew. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. This action was brought to recover upon a promissory note given by the defendant to the plaintiffs’ testator.
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Appeal from Judgment on Report of Referee. Action by George Leask and others, as executors of the estate of Oliver W. Buckingham, deceased, against J. Harvie Dew. From a judgment in favor of plaintiffs, defendant appeals. Affirmed. This action was brought to recover upon a promissory note given by the defendant to the plaintiffs’ testator. The note was dated November 23, 1901, whereby the defendant promised to pay to the order of Oliver W. Buckingham, the testator, one year after date, the sum of $5,000, with interest at 6 per cent Oliver W. Buckingham died testate on the 31st day of October,…
1Opinion of the CourtHatch, J.
The plea of tender is unavailing, as it was not made to appear that any money was produced at the time when the tender was claimed to have been made, or that any formal requisites were observed, sufficient to make a valid tender. It was said in Eddy v. Davis, 116 N. Y. 247, 22 N. E. 362:
“A tender imports not only readiness and ability to perform, but actual production of the thing to be delivered. The formal requisite of a tender may be waived, but to establish a waiver there must be an existing capacity to perform.”
The only thing disclosed by the evidence is that the testator did not intend…
2Cases cited3 opinions
- Eddy v. . DavisNew York Court of Appeals · 1889
- Dimon v. KeeryAppellate Division of the Supreme Court of the State of New York · 1900
- Dimon v. KeeryAppellate Division of the Supreme Court of the State of New York · 1900
3Cited by7 opinions
- New York, N.H. & H.R. Co. v. Reconstruction Finance CorporationCourt of Appeals for the Second Circuit · 1950
- Hall v. Wichita State Bank & Trust Co.Court of Appeals of Texas · 1923
- St. George's Society v. SawyerSupreme Court of Iowa · 1927
- Carns v. Commonwealth Life Ins. Co.Supreme Court of Alabama · 1936
- Engle v. Werner, Pennsylvania Court of Common Pleas, Dauphin County1937
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