Benjamin v. Arnold

9 N.Y. Sup. Ct. 447

• Court: New York Supreme Court
• Decided: July 1, 1874
• Status: Published

Opinion

Gilbert, J.:

Upon a consideration of the authorities in this country and in England, it must he regarded as still an open question, whether the evidence offered and rejected in this case was not admissible.

* At first blush, the reception of such evidence would not seem to contradict the contract created by the note, which is nothing more than an absolute promise to pay a sum of money, but to lay the foundation of a defense resting on equitable rules, wholly independent of the formal contract. But as this court, in the third department, in a recent case,† has decided the precise point, we think it best to follow that decision, and leave it to the Court of Appeals to establish a contrary rule, if justice should require it.

The judgment is, therefore, affirmed.

Present — Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed.

See 1 Pars. N. & B., ch. 7, § 2.

Campbell v. Tate, 7 Lans., 370.