Ontario Bank v. Walker

1 Hill & Den. 652

• Court: New York Supreme Court
• Decided: August 15, 1841
• Status: Published

Opinion

By the Court, Cowen, J.

If Roberts be a surety, he may perhaps, on showing a proper case, be substituted by chancery in the place of the bank, and allowed to-take the remedy he now asks at our hands. In law, however, the judgment is extinguished by the,payment; and he can only have a suit to recover over against the prior parties. The very reason why chancery performs the office of subrogation, in favor of a surety who has paid, is, because, the debt being extinguished, a court of law cannot do it.

Motion denied.

(a)

The dictum of Mercy, J. in The New York State Bank v. Fletcher, (5 Wendell, 85, 89,) must therefore, it seems, be understood in reference mainly to the powers of chancery.