Hyperlawhypertext legal database Knobloch v. Zschwetzke 55 N.Y. Super. Ct. 556

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Knobloch v. Zschwetzke

55 N.Y. Super. Ct. 556 23 Jones & S. 556 Court N.Y. Super. Ct. Decision date 1888-03-06 English

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p. 556
PHILIP KNOBLOCH, Appellant v. WILLIAM ZSCHWETZKE, et al., Respondents.

Headnote

Mortgage debt, assumption by grantee.—Knobloch v. Zschwetzke, 53 Super. Ci. 394,followed.—Morgan v. Smith, 70 N. T. 545; Palmer v. Purdy, 83 lb. 144, distinguished.
Before Truax and Dugro, JJ.
Decided March 6, 1888.
Appeal from judgment and from order denying motion for new trial.
The action was brought to recover damages alleged to have been sustained by plaintiff through defendants’ failure to perform their agreement to assume and pay a certain mortgage. The facts of the case will be found stated in the opinion of Sedgwick, Ch. J., in Knobloch v. Zschwetzke, 53 Super. Ct., 394.

“We concur in all that was then said by the learned chief judge. If

p. 557
anything, the plaintiffs case is presented more strongly now than it was then. The appellant does not seem to see the distinction between the case under consideration and those cited by him. In Morgan v. Smith, 70 N. Y. 545 , and Palmer v. Purdy, 83 Ib. 144, 149, there was an express reservation by the. creditor of his rights and remedies against the sureties, and the circumstances were such as permitted such a reservation. But in the present case, the findings supported by satisfactory evidence show that the creditor’s claim was discharged.' The appellant claims that Bayliss on Sureties, p. 328, sustains his point that, “ if a surety pays in ignorance of the facts, and of a good defense, it is not voluntary, and he may recover of his principal.” If he will carefully read the authority he cites, he will find that the proposition he advances is there said to be true, only when the surety has so acted without negligence. In the case under consideration the duty of making inquiry rested with the plaintiff, and therefore care and caution in acting as he did cannot properly be claimed to have been exercised. We have examined all the other authorities presented by the appellant but consider them inapplicable to the case presented on this appeal.”

Charles Dexheimer, and Edward Whitney Hall, for appellant.

John P. Schmitt, for respondent.

Opinion by Dugro, J. , Truax, J., concurred.

Judgment affirmed with costs.