11 Barb. 159 | N.Y. Sup. Ct. | 1850
By the Court,
The plaintiff moves for a new trial upon several exceptions taken at the trial, to the ruling and decision of the judge. I. The first exception upon which the plaintiff relies is to the admission of evidence that Dillenback was a surety for Herter in the note upon which the judgment, which is the foundation of this action, was recovered. The ground of the objection was that the suretiship was merged in the judgment, and that both defendants, by the recovery of the judgment, became principal debtors. And the counsel relies upon the decision of the court in this case, reported 3 Denio, 157, and Hubbell v. Carpenter, (2 Barb. S. C. Rep. 484.) It is not indispensable to the decision of this cause to decide this question. The decision at the circuit was not based upon the mere fact of suretiship and a dealing with the principal debtor
III. The next and remaining exception is to the ruling of the judge' at the close of the evidence, and upon the whole case. The judge ruled that the plaintiff ought not to recover against Dillenback, and directed a verdict in favor of the defendants.
Gridley, Allen and Hubbard, Justices.]
The motion for a new trial is denied.