Button v. Belding — 22 A.D. 618

Majority

p. 618

Eli Button, Respondent, v. Rufus E. Belding, Appellant, Impleaded with Warren S. Belding.

Headnote

Bills and nates—protest of a note made after days of grace were abolished but dated befoi'e.

Where a promissory note fell due on September 2,1893, but was not paid nor the indorser’s liability fixed, and the indorser in April, 1895 (after the law abolishing days of grace took effect), indorses a note, given in renewal of the former note, which is antedated as of September 2, 1893, and made payable two years after its date, the note is properly presented for payment and protested, and a notice of protest is properly served upon the indorser, on September 5,1895.

The indorser has no equity which entitles him to have the date of the note changed in order to afford him a technical defense under it as against the holder, which the note upon its face excludes.

Appeal by the defendant, Rufus E. Belding, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Rensselaer on the 24th day of March, 1897, upon the report of a referee.

, The action was brought to recover against the appellant as indorser upon a promissory note for $500, dated September 2,1893, and payable with interest two years from date. The note was protested for non-payment September 5, 1895, and notice of protest was given upon the same day to the appellant. The note was made in April, 1895, and antedated as of September 2, 1893, because of a former note for the same amount indorsed by the appellant, which fell due upon that date, and was not paid. The appellant had not been charged as indorser upon the former note.

Hóbley D. Gook, for the appellant.

Henry J. Speck, for the respondent.

If the present note had days of grace, then payment thereof was properly demanded and notice of its dishonor given to the appellant as indorser September 5, 1895. The appellant’s contention is that as the note was actually made in April, 1895, after chapter 607, Laws 1894, took effect, no grace, according to the custom of mer

p. 619

chants, should be allowed thereon, and, therefore, that the notice of dishonor was not duly served upon him.

Although the note had no inception until it was made and delivered in April, 1895, yet when it was delivered it took effect according to its terms and of its date, unless the equities between the parties require that the date of its inception shall prevail. Here there are no such equities. The appellant has no equity that the date of the note shall be changed in order to give to him a technical defense, which the terms of the note exclude. As' said in Bank v. Davis ( 2 Hill, 457 ): “ The face of the paper should be allowed to govern the question rather than the particular character that may be given to it as between the parties by extrinsic evidence. Every exception made to a general commercial rule concerning negotiable paper, which enters so extensively into the business transactions of the country, is calculated to embarrass its circulation and endanger its security and usefulness.”

The judgment should be affirmed, with costs.

All concurred.

Judgment affirmed, with costs.