Stewart v. Cuyler

17 Barb. 482, 1854 N.Y. App. Div. LEXIS 11

• Court: New York Supreme Court
• Decided: March 6, 1854
• Status: Published

Opinion

By the Court, Welles, J:

The judge at the circuit decided correctly in, overruling the offer of the defendants to prove that the plaintiff had other means of support than the money secured by the bond. If she had other means, she was not bound to resort to them. As I understand the bill of exceptions, the offer was to show' that she did not require any portion of the principal, for the reason that she had such other means of support. The whole offer was therefore properly overruled.

It seems to me, however, that the judge was in error in holding that the plaintiff was at liberty to demand any portion of the principal of this loan which she chose, and whenever and as often as often as she pleased. Such construction would be contrary to the spirit of the provisions of the bond. The plaintiff and the defendant William T. Cuyler, the borrower, it seems, had disagreed as to what amount she needed, and the question had been referred to the county judge in pursuance of a provision to that effect in the bond; and after the parties had appeared before him, and the matter had been adjourned to a future day, the plaintiff requested the judge to decline acting, who, at the "request and by the procurement of the plaintiff, did decline -mating any decision.

The justice at the circuit, in effect, decided that the provision pf the bond for referring to the county judge the question how much the plaintiff needed of the principal, for her support, was a nullity, and that the defendants were liable to pay such sums as the plaintiff should from time to time, and at any time, demand ; and that she was sole judge as to what amount she might need, &c. I am not able to perceive why the provision in the bond for the reference of this question was not valid and should not be enforced. The defendants had agreed that interest upon the whole of the principal unpaid should be paid quarterly, with an understanding, which is expressed in the bond, that so much of the principal as should remain unpaid at the plaintiff’s death should belong to her two grandchildren, who were the children of the defendant William T. Ouyler. Evidently a long loan was contemplated by the borrower, and he might have been unwilling to take it and be liable to repay it according to the arbitrary demand of the plaintiff; and the provision in question was doubtless inserted to guard against such a contingency. It was, in my opinion, not unreasonable, and effect should be given to it.

[Monroe General Term, March 6, 1854.

Welles, Johnson and T. R. Strong, Justices.]

If the plaintiff prevented a decision by the county judge, or procured him to decline making any, she is not entitled to recover any portion of the principal of the loan, in the present action.

If I am right in these views, the judgment should be reversed, and a new trial ordered, with costs to abide the event.

Ordered accordingly.