Hebberd v. Lee

112 N.Y.S. 1059

Opinion

SEABURY, J.

This action is brought upon an undertaking given in a proceeding in a magistrate’s court, requiring the defendant McArthur to pay the sum of $10 a week to his wife for her support. The defendant Dee was surety upon this undertaking. Upon the trial the plaintiff proved that the defendant McArthur defaulted in the payment of the sum of $80, but failed to prove that McArthur’s wife had, in fact, become a charge upon the public treasury. Upon the failure of the plaintiff to prove this fact, the complaint should have been dismissed. The case of Goetting v. Normoyle, 191 N. Y. 368, 84 N. E. 287, is decisive of the question now presented, and renders further discussion unnecessary.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.