Reports of Cases Argued and Determined in the Superior Court of the City of New York [1856-1863] (Volume 17) (Paperback)

This historic book may have numerous typos and missing text. Purchasers can download a free scanned copy of the original book (without typos) from the publisher. Not indexed. Not illustrated.1861 Excerpt: ... McKensie v. Farrell et al. 6. There is no sufficient consideration for the guaranty. The seal is only prima facie evidence of consideration. (2 R. S., 653, 107.) The only consideration which can be set up, is that expressed in the deed. Where the consideration is not expressed in the deed, it may be shown aliunde; but where expressed in the deed, none other can be shown. (Schermerhorn v. Vanderheyden, 1 Johns., 139; Winchel l v. Latham, 6 Cow., 690; Maigley v. Hauer, 7 Johns., 342; Emery v. Chase, 5 Greenl., 232.) Where words "for other considerations" are used, it is otherwise. The consideration expressed in the deed is bad. It is admitted in the complaint that the guaranty was executed after the demise. A mere promise to pay an antecedent debt of the principal, is without a sufficient consideration. (Chit, on Con.. 436, and notes.) There must be some present consideration--some advantage to the guarantor or his principal on account of the guaranty. It is not stated that the demise was at the request of the defendant. By The Court--Woodruff, J. An exception was taken on the trial to the ruling of the Chief Justice admitting the agreement in evidence upon which the action is founded. Although that exception is referred to in the points of the defendant's counsel as a part of the history of the cause, it was not claimed by him that the ruling was erroneous, and no such suggestion appears upon the points submitted. Unless it is true that in this action the plaintiff can have no judgment against the defendant Farrell, who alone appeared and answered, without establishing a right as against Higgins, (the co-defendant, ) to a joint judgment against both, then the objection was utterly groundless. As between the plaintiff and Farrell, sufficient proof was g...