Benedict v. Penfield
New York Supreme Court
Appeal from a judgment entered on a verdict rendered at the Oneida Circuit, for the sum of $3,237, and, also, from an order denying a motion for a new trial, made on the. minutes of the justice before whom the action was tried. The action was brought upon a bond of indemnity given to a sheriff to indemnify him against any loss or damages which he might sustain by reason of a levy and sale which he had made.
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Appeal from a judgment entered on a verdict rendered at the Oneida Circuit, for the sum of $3,237, and, also, from an order denying a motion for a new trial, made on the. minutes of the justice before whom the action was tried. The action was brought upon a bond of indemnity given to a sheriff to indemnify him against any loss or damages which he might sustain by reason of a levy and sale which he had made. The defense was that the defendant Penfield was induced to execute the bond by false and fraudulent representations made to him.
1Opinion of the Court
Hardin, P. J.:
Plaintiff, to recover, was required to produce the bond and to establish its delivery by the defendant. Plaintiff was entitled to give evidence of its actual delivery to him, as he did testify, in addition to the production of the bond, upon the question of its actual delivery. Clifkord, J., says, in Good v. Martin (95 U. S., 96): “As the delivery is something that occurs subsequently to the execution of the instrument, it must necessarily be a question of fact when the delivery was made. Parol proof is, therefore, admissible to show when that took place.” * * * Defendant’s…
2Cases cited10 opinions
- Ball v. State of New YorkNew York Court of Appeals · 1977
- Good v. MartinSupreme Court of the United States · 1877
- Elwell v. . ChamberlinNew York Court of Appeals · 1864
- Taylor v. . GuestNew York Court of Appeals · 1874
- People of the State of New York v. . BragleNew York Court of Appeals · 1882
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