7 N.Y.S. 613 | N.Y. Sup. Ct. | 1889
The facts are as follows: In February, 1884, one De Berg gave his note of $261.25, for value, to the firm of Shufeldt & Co., payable at four months after date, and which has never been paid. Subsequently Shufeldt & Co. sued De Berg for damages because of false representations. De Berg was arrested in that action, and for the purpose of obtaining the order of arrest Shufeldt & Co. procured the defendants herein to execute an undertaking in the form required by law. The action was tried in June, 1885, and the defendant was successful, and on June 6, 1885, a judgment was entered in his favor for $122.45 costs. On June 8th Shufeldt & Co. assigned, and transferred said note to the defendants. Other costs were awarded in the action, amounting to $94.98. In November, 1885, De Berg assigned the said undertaking, and the cause of action which had arisen thereunder, to the plaintiff herein. On November 24, 1885, Shufeldt & Co. paid said two bills of costs to De Berg’s attorney, and the judgment therefor was satisfied. De Berg became insolvent before the maturity of the note, and is still so insolvent. The plaintiff had knowledge of the existence of the note, and that it was unpaid, but he had no knowledge, nor had De Berg, of the transfer of said note to the defendants until service of the answer in this action. The plaintiff, as assignee of the said undertaking, brought his action to recover thereon from the defendants, the obligors in the undertaking. The defendants sought to counter-claim the note, which was allowed by the court, and from the judgment thereupon entered this appeal is taken.
The sole question involved upon this appeal is whether the defendants could