Fisher v. New-York Common Pleas
New York Supreme Court
[609] Motion for a mandamus. The relator moved for a mandamus to the New York common pleas, commanding them to vacate a rule for a new trial, granted by them in a cause prosecuted by one McWade against the relator. The action was covenant for rent due on an agreement under seal. The defendant executed the agreement as a surety for the lessee, who entered and held for three or four months.
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[609] Motion for a mandamus. The relator moved for a mandamus to the New York common pleas, commanding them to vacate a rule for a new trial, granted by them in a cause prosecuted by one McWade against the relator. The action was covenant for rent due on an agreement under seal. The defendant executed the agreement as a surety for the lessee, who entered and held for three or four months. The defendant had given notice with a plea of non est factum, pursuant to the statute, 2 R. S. 406, § 77, 78, -that he would impeach the instrument on the trial as obtained by fraud; and proved that the…
1Opinion of the Court
By the Court,
Cowen, J.
Without inquiring whether this be a case for a mandamus, within The People v. The Judges of the Superior Court, (10 Wendell, 285,) I am satisfied the motion must be denied on the merits. The new trial was granted on several grounds ; but the main one was clearly sufficient. Fraud cannot be predicated of a promise not performed, for the purpose of avoiding a written instrument, or a bargain of any kind. This case is no more. A contrary doctrine would avoid almost every contract for the breach of which a suit is to be brought.
[610] It is said, here was an intention not to…
2Cases cited2 opinions
- People v. Superior CourtNew York Supreme Court · 1833
- Commonwealth ex rel. Mishey v. BrennemanSupreme Court of Pennsylvania · 1829
3Cited by52 opinions
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- Williams v. . IngersollNew York Court of Appeals · 1882
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- Willcox v. SmithNew York Supreme Court · 1858
- Attorney-General v. Continental Life InsuranceNew York Court of Appeals · 1877
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