Elting v. Vanderlyn

Decided May 15, 1809

New York Supreme Court · decided 1809-05-15

THIS was an action of assumpsit. The declaration stated, that one Zachariah Hoffman, now deceased, was, in his life-time, justly indebted to the intestate, in his lifetime, in divers sums of money, &c. that the intestate, in his life-time, was about to sue the heirs of the said Hoffman, for the recovery of the sums so due to him; “ that thereupon the said Jacobus Vanderlyn, in consideration that the said i?.

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Decided 1809-05-15

How this case has been cited

Cited by 7 later decisions — most recently October 1902

7 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

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Van Ness, J.

¶1delivered the opinion of the court. 1. There is no pretence for bringing the promise within the statute of frauds. Whether the promise was in writing" or not, need not appear in the declaration. That is matter of evidence only; and after verdict, we must presume that it was in writing. Forbearance to sue is a sufficient consideration for a promise to pay the debt of another. (1 Saund. 211. a. note.)

¶22. The defendant is not sued as heir, but on a promise to pay the debt of the heirs, and the question of assets does not, therefore, arise. Heirs, under our statute, are liable for the simple contract debts of their ancestor.

¶33. The consideration of forbearance generally is sufficient, without setting forth a specific time. There was, in fact, a total forbearance for a long time, which brings the *240case within that of Mapes v. Sidney. (Cro. Jac. 683.) The court are of opinion, that the motion must be denied.

¶4Motion denied»