56 N.Y. 402, Millerd v. Thorn

Citation:56 N.Y. 402
Party Name:NELSON MILLERD et al., Respondents, v. WILLIAM B. THORN, impleaded, etc., Appellant.
Case Date:April 28, 1874
Court:New York Court of Appeals
 
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Page 402

56 N.Y. 402

NELSON MILLERD et al., Respondents,

v.

WILLIAM B. THORN, impleaded, etc., Appellant.

New York Court of Appeal

April 28, 1874

Submitted Apr. 17, 1874.

Page 403

[Copyrighted Material Omitted]

Page 404

COUNSEL

J. A. Shoudy for the appellant. Defendant Thorn clearly had the affirmative of the issue. ( Hoxie v. Green, 37 How. Pr., 97; Huntington v. Conkey, 33 Barb., 218; Lindsley v. European Ptr. Co., 3 Lans., 176; Elwell v. Chamberlin, 31 N.Y. 614.) The facts alleged in the answer were a perfect defence in Thorn's behalf. (Coll. on Part., 325, 326; Story on Part., § § 155, 156, and cases cited in note 1 to § 135; Evans v. Drummond, 4 Esp., 89, 91; Chitty on Con., 262, 263; Arnold v. Camp, 12 J. R., 409; Wydell v. Luer, 3 Den., 414; Gandolfo v. Appleton, 40 N.Y. 541.) The facts and circumstances left no question for the jury. ( Arnold v. Camp, 12 J. R., 409; Evans v. Drummond, 4 Esp., 91.) By the dissolution and transfer Smith became the principal debtor and Thorn the surety in respect to partnership debts. ( Waddington v. Vreedenburgh, 2 J. Cas., 227; Williams v. Bush, 1 Hill, 625; Crafts v. West, 4 N.Y. , 604.) By the settlement with Smith, Thorn was released and discharged. ( Place v. McIlvaine, 38 N.Y. 96; Bk. of Albion v. Burns, 46 Id., 170, 175; Oakley v. Paskeller, 10 Bligh, 548; Colgrove v. Tallman, 2 Lans., 97, 101; Marsh v. Pike, 10 Paige, 597.)

F. A. Paddock for the respondents. Taking the note from Smith will not be considered a payment of the debt, unless it be proved that it was expressly agreed to be taken as payment and at the risk of the creditor by the original debtor. ( Muldon v. Whitlock, 1 Cow., 306, and cases cited; Smith v. Rogers, 17 J. R., 340; Coles v. Sackett, 1 Hill, 516; Highland Bk. v. Dubois, 5 Den., 558; Noel v. Murray, 13 N.Y. 167;

Page 405

Bates v. Rosekrans, 37 Id., 409; Gandolpho v. Appleton, 40 Id., 533.)

GROVER, J.

The party holding the affirmative upon an issue of fact has the right, upon trial, to open and close the proof, and to reply in summing up the case to the jury. This is a legal right not resting in the discretion of the court, and when denied the denial may be excepted to and the ruling reviewed upon appeal from the judgment. ( Lindsley v. The European Petroleum Co., 3 Lansing, 176; Elwell v. Chamberlin,...

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