3 Denio 157 | N.Y. Sup. Ct. | 1846
On the trial the plaintiff’s counsel objected to proof that the defendant Dillenback was surety, in the note on which the judgment had been recovered, for his co-defendant Herter; but the objection was overruled, and the fact of such suretiship, which was showb, seems to have constituted an essential ground for the verdict rendered by the jury. I think this evidence should not have been received. By the recovery of the judgment against Dillenback, his character as surety was gone, and as between him and the plaintiff he was thenceforth a principal debtor. This point seems to be entirely settled by authoriy. (Bay v. Tallmadge, 5 John. Ch. R. 305; Lenox v. Prout, 3 Wheat. 520; Pole v. Ford, 2 Chit. R. 125; Findlay v. Bank U. S. 2 McLean's R. 44.) ' There must be a new trial.
In Bangs v. Strong, (10 Paige, 11; S. C. in error, 7 Hill, 250,) the facts raised the precise question, here adjudged; but the point does not appear to have been presented or passed upon either by the chancellor or the court of errors.