Van Nest v. Talmage
New York Supreme Court
Appeal from a judgment. This action was brought by Abraham R. Van Rest, Jr., against Thomas G. Talmage, to recover $8,929.25 as balance due on two bonds given by defendant to Abraham R. Van Rest and assigned to plaintiff. The defence was payment, with accord and satisfaction. The cause'was tried before Mr. Justice Gierke and a jury.
Read the full summary
Appeal from a judgment. This action was brought by Abraham R. Van Rest, Jr., against Thomas G. Talmage, to recover $8,929.25 as balance due on two bonds given by defendant to Abraham R. Van Rest and assigned to plaintiff. The defence was payment, with accord and satisfaction. The cause'was tried before Mr. Justice Gierke and a jury. The defendant obtained the affirmative of the issue, and proved the execution of an agreement of the parties, under seal, dated April 19th, 1845, in which plaintiff accepted certain real estate and securities in payment, “ leaving a balance as from the first of…
1Opinion of the CourtLeonard, J.
The agreement of April 19th, 1845, was a full and valid discharge to the defendant from all personal liability to the plaintiff, on the obligation therein recited, except for the balance of $3,352.20, which was to be considered as the amount due May 1,1845.
The transaction proven by the receipt of Oct. 23d, 1846, prima facie discharged that balance.
The plaintiff was correct in his practice by commencing his action upon the bonds of the defendants, and not upon the agreement of April 19th, 1845, or for the purpose of setting-aside the receipt of Oct., 23d.
Under the system of pleading…
2Cited by2 opinions
- Martin v. Manufacturers' Accident Indemnity Co.New York Supreme Court · 1891
- Shear v. HealyAppellate Division of the Supreme Court of the State of New York · 1924