Auburn City Bank v. Leonard
New York Supreme Court
APPEAL by the defendant from a judgment entered on the report of a referee. The complaint alleged that on the 4th of March, 1859, one Thomas W. Smith was. indebted to the plaintiff, as maker of certain promissory' notes, set forth and described, which had been discounted for him by, and were then held by, the plaintiff; also upon two drafts before that time drawn by said T. W. Smith and discounted and owned by the plaintiff.
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APPEAL by the defendant from a judgment entered on the report of a referee. The complaint alleged that on the 4th of March, 1859, one Thomas W. Smith was. indebted to the plaintiff, as maker of certain promissory' notes, set forth and described, which had been discounted for him by, and were then held by, the plaintiff; also upon two drafts before that time drawn by said T. W. Smith and discounted and owned by the plaintiff. That the drafts were duly presented for payment, at maturity, and protested for non-payment. That all of the promissory notes were then due, and the notes and drafts were…
1Opinion of the Court
By the Court, Johnson
J. If the instrument on which the action was brought was in legal effect a promise by the defendant to pay the indebtedness of Smith to the plaintiff, personally, the action is well brought and the judgment must be affirmed, unless there was some erroneous ruling in the course of the trial. (Burr v. Beers, 24 N. Y. Rep. 178. Lawrence v. Fox, 20 id. 268.)
The terms of the undertaking are “ I agree to cancel said T. W. Smith’s indebtedness to the said Auburn City Bank.” This is not in explicit terms a promise to pay the indebtedness, but if the undertaking is, as upon its…
2Cases cited8 opinions
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