Maurice v. Fowler — 78 Misc. 357

Majority

p. 357

Jules J. Maurice, Appellant, v. William M. Fowler, Respondent.

(Supreme Court, Appellate Term, First Department,

December, 1912.)

Headnote

Negotiable instruments — where maker writes word “renewed” on notes — Statute of Limitations.

In an action on two promissory notes given as security for a preexisting debt, it is no defense that the notes were made only for accommodation of the original payee.

Where, upon one of the notes, the defendant maker writes the word “ renewed ” together with his signature, there is an unequivocal renewal of his promise to pay sufficient to take the case out of the Statute of Limitations; and the fact that the new promise was asked by the original payee and not by the actual holder of the note is immaterial.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, rendered in favor of the defendant.

William M. Kileullen, for appellant.

Frank Trenholm, for respondent.

The plaintiff sues upon two notes which the defendant admits making. The answer attempts to set up a defense to the first cause of action that the defendant made the note only for the accommodation of the original payee; and as a defense to the second cause of action he sets up the Statute of Limitations.

p. 358

At the trial evidence was received upon both these issues, and the trial justice rendered judgment in favor of the defendant on both causes of action. The record is somewhat confused, but I think it sufficiently appears that the plaintiff received these notes as security for a pre-existing debt, and, therefore, the defense to the first cause of action was not sustained.

“A pre-existing debt, without extension or forbearance, is sufficient consideration upon which to hold the accommodation maker of a promissory note where there has been no restriction placed on its use.” Lehrenkrauss v. Bonnell, 199 N. Y. 240 , citing Grocers’ Bank v. Penfield, 69 id. 502.

It further, I think, sufficiently appears that the defendant wrote on the note in suit in the second cause of action the word “ renewed ” together with his signature, and that this was an unequivocal renewal of the promise sufficient to take the case out of the statute. It is in my opinion immaterial that the note was presented to the defendant and a new promise asked by the original payee of the note, and not the holder to whom the note had been assigned. By indorsing the new promise upon the note itself, the defendant must be regarded as having made the new promise to the actual holder.

Judgment should be reversed and a new trial ordered with costs to appellant to abide the event.

Page, J., concurs; Hotchkiss, J., concurs in result.

Judgment reversed and new trial ordered, with costs to appellant to abide event.

Cases cited

Lehrenkrauss v. Bonnell 199 N. Y. 240 N.Y. 1910-09-27 p. 358