Legal Opinion

Levy v. Nicholas

The Superior Court of New York City

Decided April 15, 1863PublishedCited by 4 opinions

Appeal from an order sustaining a demurrer to part of an answer, and directing judgment for the plaintiff thereupon. The action was brought upon an undertaking of bail, given by the defendants Thomas Stacy and Anastasios Nicholas, upon the arrest of one Edwin R. L’Amoureux, upon an order of arrest granted in a civil action against him under the Code of Procedure. The undertaking was in the usual form.

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Appeal from an order sustaining a demurrer to part of an answer, and directing judgment for the plaintiff thereupon. The action was brought upon an undertaking of bail, given by the defendants Thomas Stacy and Anastasios Nicholas, upon the arrest of one Edwin R. L’Amoureux, upon an order of arrest granted in a civil action against him under the Code of Procedure. The undertaking was in the usual form. The complaint alleged, besides the arrest, and the execution of the undertaking, which was in the sum of $2,000, that the plaintiff had recovered judgment in the former action against…

1Opinion of the Court

By the Court.*—Bosworth, Ch. J.

The only question presented by this appeal is, whether special bail who have become fixed, can, in an action against them, as such bail, show, either in bar of the action or in mitigation of damages, that, before the recovery of judgment against their principal, he was, and at all times since has been utterly insolvent, and had no property whatever that could, or was liable to be applied towards the payment of such judgment.

That fact is not one of those which the Revised Statutes (2 Rev. Stat., 383, §§33 and 34) provide may be pleaded or presented as a ground…

2Cases cited2 opinions

  1. Burrows v. TurnerNew York Supreme Court · 1840
  2. Gregory & Foot v. Levy & SedgwickNew York Supreme Court · 1852

3Cited by4 opinions

  1. United States v. EldredgeUtah Supreme Court · 1887
  2. Star Fire Insurance v. GodetThe Superior Court of New York City · 1872
  3. United States v. EldredgeUtah Supreme Court · 1887
  4. Walsh v. SchulzCity of New York Municipal Court · 1884

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