Majority
p. 328O’ROURKE v. HANCHETT. (Supreme Court, General Term, First Department. October 18, 1895.) Argued before VAN BRUNT, P. J., and O'BRIEN and PARKER, JJ.
Headnote
Negotiable Instruments—Notice op Nonpayment—Waiver.A promise by an indorser to pay a note is not a waiver of the objection that he was not notified of nonpayment of the note, where he did not know when he made the promise that he had not been charged as indorser.
Action by Patrick C. O’Rourke against Margaretha Hanchett on a promissory note indorsed by defendant. A verdict was directed in favor of defendant, on the ground that she did not have notice of nonpayment, and plaintiff moves for a new trial on exceptions ordered to be heard at general term in the first instance. Denied.
A. B. Stewart, for the motion.
F. Eder, opposed.
Although the record in this case contains no evidence of an absolute promise to pay, yet, if it did, it not appearing that such promise was made with full knowledge of the fact that the defendant had not been charged as indorser, it would be insufficient to create a liability. Meyer v. Hibsher, 47 N. Y. 265 . The rule laid down in that case is as follows: “A promise, to work a waiver, must be made with full knowledge of all the facts.” The exceptions should be overruled, and judgment ordered upon the verdict, with costs.
Cases cited
- Meyer v. Hibsher 47 N. Y. 265 p. 328