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2 E.D. Smith 48

Hance v. Rumming

New York Court of Common Pleas

Decided October 15, 1851

New York Court of Common Pleas · decided 1851-10-15

The complaint in this action was upon a joint and several bond, executed by the defendant and others as sureties for one Cavanagh, conditioned to be void on payment, by Cavanagh, to the plaintiffs, of the amount to be recovered by the plaintiffs in a suit pending at the time of the execution of the bond, wherein the plaintiffs in this cause were parties plaintiff and Cavanagh was defendant.

Decided 1851-10-15

By the Court. Daly, J.

¶1When the defendant executed the bond or undertaking on which this action is based, he knew that the suit against Oavanagh was pending. The attorney, by whom he now defends, conducted the defence in that suit, and the judgment is a public record. If he had not thus constructive notice of the judgment, he had the necessary means of information. He had but to ask Ms own attorney, when that attorney was preparing the answer for him. To permit a party so circumstanced, with every means of knowledge within his power, to answer that he has no Tmowledge or information sufficient to form a belief whether the judgment was recovered, would be to sanction a palpable evasion. The Code provides for the striking out of sham answers, and we think this can be regarded in no other light, (a)

¶2Order affirmed.

¶3This decision accords -with the former practice in chancery. See Hall v. Wood, 1 Paige, 404; Sloane v. Little, 3 lb. 103; Scotts v. Hume, Litt. Sel. Cas. 379; Taylor v. Luther, 2 Sumn. 228.

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