Concord Granite Co. v. French

New York Court of Common Pleas

Concord Granite Co. v. French

12 Daly 228, 65 How. Pr. 317

CourtNew York Court of Common Pleas

DecidedJune 29, 1883

StatusPublished

Cited by2 cases

This text of 12 Daly 228 (Concord Granite Co. v. French) is published on Counsel Stack Legal Research, covering New York Court of Common Pleas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Concord Granite Co. v. French, 12 Daly 228, 65 How. Pr. 317 (N.Y. Super. Ct. 1883).

Pincite

Opinion

Beach, J.

This action was properly brought against the defendant as maker of the note. Thereafter and before answer, the sum due upon it was paid the plaintiff presumably by the payee and indorser, and the defendant, among other minor defenses, alleged in his answer, that such payment was made by the indorser, and the plaintiff, was not the real party in interest. The learned court below was not called upon to decide any other question. It was found that the indorser did not pay until after the commencement of this action.

It seems the contention between the parties only affects the question of costs. If the payment averred in the answer was in fact made bj the defendant it would have been better to have pleaded the truth. The defendant should now be held to his averment.

The'evidence contained in the record shows the truth of the allegation in the answer that the note was paid by the Smith Granite Company, payee and indorser, to the plaintiff as holder, after this action was brought. This fact in no way enured as a defense to the defendant. His liability could only be met in this case from payment by him (Edwards on Bills 535; Story on Promissory Notes § 401; Havens v. Huntington, 1 Cowen 387).

The Smith Granite Company, by the payment, acquired a cause of action against the defendant, and might have asked a substitution as plaintiff here; but the action did not abate, and, under the circumstances, was properly continued by the original plaintiff (Code Civ. Pro. §§ 755, 756). What may result to the defendant, from a correct disposition of the issue he made, is of no importance, especially under the supposition entertained by me from the evidence that his answer was interposed with an intention of gaining a technical advantage, or escaping the payment of costs for which he was properly liable.

In regard to the legal status of the three- parties, I concur [230]*230in the view so clearly expressed by Judge McAdam in the court below (3 N. Y. Civ. Pro. 56).

The judgment should be affirmed, with costs and disbursements.

Charles P. Daly, Ch. J., concurred.

Judgment affirmed, with costs.

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Beach, J.

This action was properly brought against the defendant as maker of the note. Thereafter and before answer, the sum due upon it was paid the plaintiff presumably by the payee and indorser, and the defendant, among other minor defenses, alleged in his answer, that such payment was made by the indorser, and the plaintiff, was not the real party in interest. The learned court below was not called upon to decide any other question. It was found that the indorser did not pay until after the commencement of this action.

It seems the contention between the parties only affects the question of costs. If the payment averred in the answer was in fact made bj the defendant it would have been better to have pleaded the truth. The defendant should now be held to his averment.

The'evidence contained in the record shows the truth of the allegation in the answer that the note was paid by the Smith Granite Company, payee and indorser, to the plaintiff as holder, after this action was brought. This fact in no way enured as a defense to the defendant. His liability could only be met in this case from payment by him (Edwards on Bills 535; Story on Promissory Notes § 401; Havens v. Huntington, 1 Cowen 387).

The Smith Granite Company, by the payment, acquired a cause of action against the defendant, and might have asked a substitution as plaintiff here; but the action did not abate, and, under the circumstances, was properly continued by the original plaintiff (Code Civ. Pro. §§ 755, 756). What may result to the defendant, from a correct disposition of the issue he made, is of no importance, especially under the supposition entertained by me from the evidence that his answer was interposed with an intention of gaining a technical advantage, or escaping the payment of costs for which he was properly liable.

In regard to the legal status of the three- parties, I concur [230]*230in the view so clearly expressed by Judge McAdam in the court below (3 N. Y. Civ. Pro. 56).

The judgment should be affirmed, with costs and disbursements.

Charles P. Daly, Ch. J., concurred.

Judgment affirmed, with costs.

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12 Daly 228, 65 How. Pr. 317, Counsel Stack Legal Research, https://law.counselstack.com/opinion/concord-granite-co-v-french-nyctcompl-1883.

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