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Reines v. Berkman

58 N.Y.S. 281 Court N.Y. App. Term Decision date 1899-05-24 English

Delivered by FREEDMAN, P. J."

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p. 281
REINES et al. v. BERKMAN.
(Supreme Court, Appellate Term.
May 24, 1899.)

Headnote

Guaranty of Accounts—Liability—Evidence.
To recover on' a guaranty that certain accounts are collectible, plaintiff must show that the debtors are insolvent, and that their liability cannot be enforced by due process of law.
Appeal from municipal court, borough of Manhattan, Fourth district.
Action by Jacob Reines and another against Davis Berkman. There was a judgment for defendant, and plaintiffs appeal.
Affirmed.
Argued before FREEDMAN, P. J., and MacLEAN and LEVBN-TRITT, JJ.
Lewis Goldberg, for appellants.

The guaranty upon which the defendant was sued must, under all the circumstances, be construed to be one guarantying the collectibility of the accounts therein referred to. That

p. 282
being so, the plaintiffs were bound to prove that the parties liable upon such accounts are not solvent, and that their liability cannot be enforced by due process of law. This the plaintiffs failed to do, and consequently their complaint was properly dismissed.

Judgment affirmed, with costs to respondent. All concur.