Davis v. . Toulmin

Church, Ch. J. The action was for contribution between co-sureties. The exception raises the question whether in such an action, it is competent for the defendant to avail himself of an indebtedness of the plaintiff to the principal, as a defense. The authorities are decisive against it. ( O’Blemis v. Karing, 57 N. Y., 649; Lasher v. Williams, 55 id., 619; Springer v. Dwyer, 50 id., 19.) If the co-surety suing for contribution has received any money or property as payment, or security from the principal, he will be obliged to account for the same, but a simple indebtedness to the principle cannot be availed of by the defendant. In case of insolvency there may be cases where equity having all the parties before it might relieve, but no such question is presented in this case. We concur with the opinion at Special Term. The judgment must be affirmed. All concur. Judgment affirmed.