Davis v. . Toulmin

Decided May 20, 1879

New York Court of Appeals · decided 1879-05-20

This was an action for contribution. The parties were co-sureties for one Tuck upon an undertaking given ■ on appeal; the judgment was affirmed. Judgment was recovered upon the undertaking, which plaintiff paid. Defendant offered to prove on the trial that plaintiff was indebted to Tuck on account to an amount much larger than the amount paid by plaintiff. This was objected to ; objection sustained, and defendant’s counsel duly excepted.

Cited by 1 later decisions — most recently December 1891

1 state decisions

Good law ✅— No negative treatment on recordhow we know

Decided 1879-05-20

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Church, Ch. J.

¶1 The action was for contribution between co-sureties. The exception raises the question whether in such an action, it is competent for the defendant to avail himself of an indebtedness of the plaintiff to the principal, as a defense.

¶2 The authorities are decisive against it. ( O’Blemis v. Karing, 57 N. Y., 649; Lasher v. Williams, 55 id., 619; Springer v. Dwyer, 50 id., 19.) If the co-surety suing for contribution has received any money or property as payment, or security from the principal, he will be obliged to account for the same, but a simple indebtedness to the principle cannot be availed of by the defendant. In case of insolvency there may be cases where equity having all the parties before it might relieve, but no such question is presented in this case.

¶3 We concur with the opinion at Special Term.

¶4 The judgment must be affirmed.

¶5 All concur.

¶6 Judgment affirmed.