Marcellus v. Countryman
New York Supreme Court
THIS action was brought before a justice of the peace of the county of Cayuga, to recover of the defendant the amount due on a promissory note, made by him, and bearing date April 12, 1869, for the sum of $42.88 and interest, payable to the plaintiff on or before the 1st of April then next. The defence was a general denial, a former suit and recovery on the same note, and a counter-claim. The execution of the note was proved.
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THIS action was brought before a justice of the peace of the county of Cayuga, to recover of the defendant the amount due on a promissory note, made by him, and bearing date April 12, 1869, for the sum of $42.88 and interest, payable to the plaintiff on or before the 1st of April then next. The defence was a general denial, a former suit and recovery on the same note, and a counter-claim. The execution of the note was proved. On cross-examination of the plaintiff it appeared that he had commenced an action against the' defendant, before another justice of said county, to recover the amount…
1Opinion of the Court
By the Court, Mullih, P. J.
It is now settled that a judgment is not a bar to a second action for the same cause of action a former one was brought for, if, at the time of the rendition of the former judgment, the cause of action had not then accrued. (2 Cowen & Hill's Notes, 735, 736. Bull v. Hopkins, 7 John. 22.) It follows that paroi evidence is admissible to show that the demand in the second suit was not recovered for in the first. That fact might, occasionally, be proved by written evidence; but it can very rarely be so proved. The evidence of the juror was properly received.
The only…
2Cases cited3 opinions
- Parmelee v. . ThompsonNew York Court of Appeals · 1871
- Vilas & Bacon v. Jones & PiercyNew York Court of Appeals · 1848
- Bull v. HopkinsNew York Supreme Court · 1810
3Cited by4 opinions
- Henry v. RowellNew York Supreme Court · 1900
- Andrews v. CrossNew York Supreme Court · 1885
- Taylor v. NeysSouth Dakota Supreme Court · 1899
- Pittman v. JohnsonNew York Supreme Court · 1885