McCombs v. . Allen
New York Court of Appeals
Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of defendants, entered upon a decision of the court on trial without a jury. (Eeported below, 18 Hun, 190.) This action was brought upon an undertaking executed by defendants to discharge an attachment issued in an action brought by Solomon Stein and another against Dearborn B. McCrillis.
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Appeal from judgment of the General Term of the Supreme Court, in the third judicial department, affirming a judgment in favor of defendants, entered upon a decision of the court on trial without a jury. (Eeported below, 18 Hun, 190.) This action was brought upon an undertaking executed by defendants to discharge an attachment issued in an action brought by Solomon Stein and another against Dearborn B. McCrillis. The undertaking was in the form prescribed by the Code of Civil Procedure (§ 668), conditioned that the attachment debtor would pay on demand the amount of any judgment recovered…
1Opinion of the CourtDanforth, J.
This case seems a clear one for the respondent. The allegations in the complaint were not put in issue by the answer, and upon the trial were taken to be true. Thus a cause of action resting upon express contract was established, and the only questions before the court were upon the new matter set up by the defendants. It was insufficient. Their undertaking was to pay on demand the amount of any judgment which might be recovered in an action then pending against one McCrillis, not exceeding a sum named. Upon the faith of this promise an attachment and the lien thereby acquired, and then held…
2Cases cited2 opinions
- Holyoke v. . AdamsNew York Court of Appeals · 1874
- Cutter v. EvansMassachusetts Supreme Judicial Court · 1874
3Cited by14 opinions
- Schunack v. Art Metal Novelty Co.Supreme Court of Connecticut · 1911
- Rosenthal v. PerkinsCalifornia Supreme Court · 1898
- Guaranty Security Corp. v. OppenheimerMassachusetts Supreme Judicial Court · 1923
- King v. Will J. Block Amusement Co.Appellate Division of the Supreme Court of the State of New York · 1908
- Fox v. MackenzieNorth Dakota Supreme Court · 1890
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