Wayne v. Blackmar — 48 N.Y. 663

Majority

p. 663

The Wayne and Ontario Collegiate Institute, Respondent, v. Horace Blackmar, Appellant.

(Argued September 21, 1871;

decided January term, 1872.)

Headnote

Action upon- a subscription paper made payable to the “ treasurer of a board of trustees which may be elected by the Wayne County Baptist Association at a convention to meet at Marion, on. Wednesday, the 30th of the present month,” and upon a bond executed to plaintiff, conditioned to pay $500 “ when a Iona fide subscription of $10,000 is made by such persons as are responsible, including the responsible subscriptions heretofore made,” etc.

Defendant offered to show, as a defence to the subscription, that the trustees mentioned in complaint are not the trustees elected at the time specified in the bond, but were irregularly elected at another time and place.

Held, that this was a good defence under the authority of the case Same Plamtíff v. La/oinney (Court of Appeals, December term, 1869), and the evidence was erroneously excluded.

Plaintiff produced and proved an agreement, signed by responsible persons, “ agreeing to guaranty the payment of the subscriptions, and agreeing to pay to the trustees a further sum sufficient to make up, when added to the amount of such subscriptions, $10,500. Held, that this was a substantial and sufficient compliance with the conditions of the defendant’s bond.

T. B. Strong for the appellant.

L. Tremain for the respondent.

p. 664

Hunt, 0., reads for deducting from the judgment the sum of $39.60, the amount of judgment upon the subscription paper, witli interest from April 24, 1865, and for affirmance of the judgment as to residue, with costs.

All concur.

Judgment accordingly.