Westchester Mortgage Co. v. McIntire, Inc.

Headnote

Westchester Mortgage Co. v. Mclntire, Inc., 168 App. Div. 465 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 18, 1915, affirming a judgment in favor of plaintiff entered upon a verdict directed by the court in an action upon an instrument guaranteeing payment of a promissory note. A note for $500, executed by Thomas B. Mclntire, Inc., to plaintiff became due on or about March 21, 1914, at which time appellant, who had guaranteed the same, signed a consent that the time of payment might be extended by one or more extensions

for not to exceed six months. On June 19, 1914, plaintiff commenced this action by service of the summons and complaint upon the defendant, appellant, .William H. Foster. On July 14, 1914, Foster had not appeared or pleaded in the action and was in default, when on that day a written agreement was executed by plaintiff and Thomas B. Mclntire, Inc., that payment of the note be postponed to August first. On November 21, 1914, defendant Foster obtained an order opening his default in pleading upon payment of costs and thereafter served his answer. The defense was that the extension of the time of payment of the note made after action brought and default on the part of the defendants, abrogated the right of the plaintiff to hold the guarantor hable, as that right existed at the time of the commencement of the action.