Mack v. Kitsell
City of New York Municipal Court
Demurrer to complaint. Jingo S. Mack, as assignee for the benefit of .creditors, sued Win. F. Kitsell for the price of goods sold and delivered by the assignors.
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Demurrer to complaint. Jingo S. Mack, as assignee for the benefit of .creditors, sued Win. F. Kitsell for the price of goods sold and delivered by the assignors. The part of the answer setting up a separate and affirmative defense was as follows: First.—The defendant on information and belief avers that the plaintiff’s assignors are entirely insolvent; that their schedule of liabilities and assets, filed in pursuance of law in the office of the clerk of the court of common pleas in and for the city and county of Hew York subsequent to the making of the assignment set forth in paragraph II of…
1Opinion of the Court
McAdam, Ch. J.
This case may be viewed in two as.pccts—one legal, the other equitable. At law, if A makes promissory notes for the accommodation of B, the payee, and *297they arc subsequently negotiated and dishonored, A has no cause of action against B until lie first pays the notes, and then his action is tor money paid to B’s use {Cow. Tr. § 317, and cases cited). Tested by these common law rules, the outstanding liability pleaded by the defendant constitutes no defense to the demand in suit. But, A (the defendant) pleads, as lie lawfully may, to a common law action, an equitable defense {Code…
2Cases cited4 opinions
- Lindsay v. Jackson & McJimpseyNew York Court of Chancery · 1831
- Warner v. BeardsleyCourt for the Trial of Impeachments and Correction of Errors · 1831
- Harsha v. . ReidNew York Court of Appeals · 1871
- Gibbs v. MennardNew York Court of Chancery · 1837
3Cited by5 opinions
- Katz v. WittCity of New York Municipal Court · 1911
- Schreiber v. Noe, New York County Courts1930
- Groff v. BlissAppellate Terms of the Supreme Court of New York · 1896
- Sullivan v. Bankers Surety Co.City of New York Municipal Court · 1908
- In re Knoop's EstateNew York Surrogate's Court · 1890