26 Barb. 461 | N.Y. Sup. Ct. | 1857
We see no error in the ruling of the justice at the trial. The plaintiff had loaned to the defendants $1300, which they were hound to repay to him on demand. It is conceded that the money'has never been paid, and the defense set up, that the defendant Plume was discharged from this debt because the plaintiff did not call on the defendant Burgoyne for it, in accordance with the notice in the San Francisco newspapers, is entirely untenable. It is in proof that the plaintiff did not reside in San Francisco, and it does not appear that he ever saw, knew, or heard of the notice. He was under no obligation to call for his money, if he had.
There is nothing in the objection that the plaintiff cannot recover until he has indorsed the certificate of deposit. He doubtless would have indorsed it if it had been paid, or offered to be paid, at the time he presented it for payment. And it being now in the possession of the plaintiff’s attorney, it can be delivered up to the defendants on payment of this judgment; and such payment will be an extinguishment of all liability of the defendants or either of them, in consequence thereof, and a full protection to them.'
The judgment below should be affirmed, with costs.
Mitchell, Davies and Clerke, Justices.]
