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Vogt v. Fasola

41 A.D. 467 Court N.Y. App. Div. English

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p. 467
Charles Vogt, Jr., and Others, Appellants, v. Frank A. Fasola, Respondent.

Headnote

Composition deed dated “ the day of August, 1898 ”—a provision for payment within two months from the date of the instrument means from the end of August — a delay in getting the signatures of creditors does not extend the time.
Where a composition deed executed between a debtor and his creditors, dated “ the day of August, 1898,” provides for the acceptance by the creditors of twenty-five per cent of their claims, payment to be made within two months from the date of the instrument, the two months mentioned in the deed do not commence to run until the end of August.
The terms of such a deed must be strictly complied with, and a creditor to whom the debtor makes no tender of the twenty-five per cent until two or three days before the following Thanksgiving day, is entitled to maintain an action against the debtor for the entire amount of his claim.
The fact that the debtor did not obtain the signature of the last creditor to the composition deed until January, 1899, does not relieve him from his default, the operation of the instrument not being dependent upon that circumstance.
Appeal hy the plaintiffs, Charles Vogt, Jr., and others, from a judgment of the Municipal Court of the city of 27ew York in fa.vor of the defendant, entered in the office of the clerk of said court.
Frank H. Vogt, for the appellants.
Denis O’ Sullivan, for the respondent.

The suit is for a balance due on a bill of goods sold. The defense was a composition deed, executed by the plaintiffs with other creditors, whereby they agreed to accept twenty-five per cent of their claims, payment to he made within two months from the date of the instrument, which was “ the day of August, 1898.” The defendant pleaded tender of twenty-five per cent of the plaintiffs’ claim, and he paid such amount into court. Judgment was rendered for the plaintiffs for the amount tendered. The particular

p. 468
day in August not being specified, the two months allowed by the agreement did not commence to run until the cud of that month. But the defendant proved no tender until two or three days before Thanksgiving day. This was not sufficient. The terms of a composition deed must be strictly complied with. (Penniman v. Elliott, 27 Barb. 315 ; Smythe v. Graydon, 29 How. 11 ; Warburg v. Wilcox, 2 Hilt. 118.) The defendant sought to relieve himself from his default by proof that he did not obtain the signature of his last creditor to the deed until January, 1899. It was unnecessary that he should obtain its execution by all his creditors to render the deed operative, as no such provision was contained in the instrument. (Renard v. Tuller, 4 Bosw. 107 ; Hall v. Merrill, 5 id. 266; Strickland v. Harger, 16 Hun, 465 ; Van Bokkelen v. Taylor, 62 N. Y. 105 .) Hence this delay did not relieve the debtor from his obligation to pay within the stipulated time the creditors who signed in August.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment of the Municipal Oourt reversed and new trial granted, to be held on July 7, 1899, costs to abide the event.

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