46 N.Y. 170, Bank of Albion v. Burns

Citation:46 N.Y. 170
Party Name:THE BANK OF ALBION, Appellant, v. ROBERT BURNS et al., Respondents.
Case Date:September 02, 1871
Court:New York Court of Appeals
 
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Page 170

46 N.Y. 170

THE BANK OF ALBION, Appellant,

v.

ROBERT BURNS et al., Respondents.

New York Court of Appeal

September 2, 1871

Argued Jun. 19, 1871.

Page 171

[Copyrighted Material Omitted]

Page 172

COUNSEL

H. R. Selden, for appellant. As the judgment is not reversed upon any question of fact, no question is presented beyond exceptions to evidence and to the referee's conclusions of law. (Code, § 268, subdivision 4; Id., § 272, subdivision 7; Baldwin v. Van Deusen, 37 N.Y. 487-490; Shibley v. Angle, Id., 631; East River Bank v. Kennedy, 4 Keyes, 279.) The bond and mortgage were given as continuing security, and Burns had a right so to use it. ( Agawam Bank v. Strever 18 N.Y. 510, 511, and cases cited; Seneca Co. Bank v. Mass., 3 N.Y. , 43; Lawrence v. Tucker, 23 How., U.S. 14-27; Robinson v. Williams, 22 N.Y. 380; Young v. Wilson, 27 N.Y. 351.) The testimony cannot be resorted to, to overthrow the finding of the referee. ( Grant v. Morse, 22 N.Y. 323, 324; Colwell v Lawrence, 38 Id., 71, 76, 77; Milburn v. Belloni, 39 Id., 54; East River Bank v. Kennedy, 4 Keyes, 279, 284; Bergen v. Wemple, 30 N.Y. 319, 324.) This court can only look to the order, not the opinion of the court below for evidence, that the reversal proceeded

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upon a question of fact. (Code, § § 268, 272; East River Bank v. Kennedy, 4 Keyes, 283, 284.)The extension of time of payment of the debt, as security for which the bond and mortgage was pledged, did not discharge the surety. ( Gahn v. Niemcewicz, 11 Wend., 312; see opinion of NELSON, J., pp. 320-322; Roosevelt v. Mark, 6 John. Ch., 266; see the opinion of the chancellor, pp., 279-284, and the cases there cited, and particularly Toussaint v. Martinnant, 2 T. R., 100; and Martin v. Court, Id., 640; also, Monell v. Smith, 5 Cow., 441; Monell v. Smith, 5 Cow., 444.)

S. Hand, for respondents. The title appearing upon record in Mrs. Burns', plaintiff, is chargeable with knowledge. ( Purdy v. Huntington, 42 N.Y. 334; Briggs v. Palmer, 20 Barb., 392; Smith v. Townsend, 25 N.Y. 479.) The wife stood simply in the relation of surety. ( Vartie v. Underwood, 18 Barb., 561; Loomer v. Wheelright, 3 Sandf. Ch., 135; Hawley v. Bradford, 9 Paige, 200; Fitch v. Colheat, 2 Sand. Ch., 29.) The payment of the debt or extension of time would release her. (Smith v. Townsend, supra; Billington v. Wagner, 33 N.Y. 31; Henderson v. Marvin, 31 Barb., 297; Draper v. Prescott, 29 Barb., 401; Gahn v. Niemcewicz, 11 Wend., 312; Place v. McIlvain, 38 N.Y. 96; Fellows v. Prentiss, 3 Den., 512; Bangs v. Mosher, 23 Barb., 478; Myers v. Welles, 5 Hill, 475; Bank of Orleans v. Barry, 1 Den., 116; Hart v. Hudson, 6 Duer., 294; Pitman on Surety, 170, 171, 172, 40 Law Lib.) The debt for which mortgage was security was paid before suit. ( Dows v. Moorewood, 20 Barb., 183; Hunter v. Osterhout, 11 Barb., 33; Allen v. Culver, 3 Den., 284; Webb v. Dickinson, 11 Wend., 62; Shepperd v. Steele, 4 Hand, 52; Thorns v. Kelsey, 30 Barb., 126; Bank v. Brown, 1 N.Y. Legal Ob., 149; Patterson v. Hull, 9 Cow., 747; Loomer v. Wheelright, 3 Sand....

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