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29 N.Y. Sup. Ct. 287

Comins v. Pottle

New York Supreme Court

Decided September 15, 1880

New York Supreme Court · decided 1880-09-15

Appeal by tbe defendant from a judgment entered upon tbe decision of tbe court overruling a demurrer to the complaint. - The complaint alleged that in March, 1876, the plaintiff herein, recovered a judgment in this court, upon the report of a referee,, against one Samuel A. Iletfield, from which Hetfield appealed to the General Term of this court, where the judgment was, in all things, affirmed with costs, and judgment of affirmance, with $174.81 costs, was duly entered up…

Decided 1880-09-15

Eollett, J.:

¶1A joint promise is severed by the death of one of the promisors; and the survivor remains liable. (Matter of Rice, 7 Allen, 112, 115; Kennedy v. Carpenter, 2 Wharton, 361.) In the case last cited, two persons became joint accommodation indorsers, and it was said that the survivor was liable on his promise. In Richardson v. Horton (6 Beav., 185), A. and B. were obligors in a joint bond. A., who was alleged to be the principal debtor, died. It was held that the assets of A. were not liable upon the bond ; but that the liability survived to B. Unless B.’s liability to the obligee survived the death of A., B. would have had no cause of action against the estate of A. (Grant v. Shurter, 1 Wend., 148; Godson v. Good, 6 Taunt., 587; Cabell v. Vaughan, 1 Saund., 291, notes; Fort v. Oliver, 1 Maule & S., 242; Weaver v. Shryock, 6 *289Serg. & R., 261; Getty v. Binsse, 49 N. Y., 385; 2 Chitty on Cont., 11 Am. ed., 1351, note S; 3 Williams on Ex., 6 Am. ed., 1842; Chitty Pl., 16 Am. ed., 49; 3 Robinson Pr., 106; 4 Id., 181.)

¶2The judgment must be affirmed, with costs.

Learned, F. J., and Bookes, JJ"., concurred.

¶3Judgment affirmed, with costs.

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