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Kinney v. Winter

1 Edm. Sel. Cas. 109 Court NEW YORK CIRCUIT. Decision date 1845-05-26 English

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p. 109
NEW YORK CIRCUIT.
May 26, 1845.
Before Edmonds, Circuit Judge.
Randolph Y. Kinney v. Andrew Winter.

Headnote

Assumpsit lies to recover money paid or deposited under an agreement made without consideration.
The plaintiff was arrested by the defendant, a deputy sheriff, in Hew Jersey, and instead of giving bail for his appearance, deposited with the defendant the money now sought to be recovered, under an agreement that if he did not surrender himself to the defendant on a certain day, or settle with the party at whose suit the process was issued, the money might be paid over to the latter.
The plaintiff proved he had offered to surrender himself ' before the day appointed, and, also, that the money had been demanded from the defendant. For the defense, it was proved that the offer to surrender was made on a Sunday, and that, after the day named within the agreement for the plaintiff’s surrender, the money had been paid by the defendant to the party at whose suit the process issued; and it was contended that the defendant had a right to pay over the money, as the offer to surrender on Sunday was not a compliance with the condition in the agreement on behalf of the plaintiff

The Circuit Judge held that the agreement upon which the money had been deposited was without consideration and void (Millard v. Canfield, 5 Wend. 61 ), and that the plaintiff, was entitled to recover.

Verdict for plaintiff

Marvin, for plaintiff.

H. V. Cowles, for defendant.

[This case was carried to the Court of Appeals, where the foregoing principle was affirmed, but the judgment was reversed, and a new trial granted on another ground. 1 N. Y. Reports 365.]

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