Majority
p. 1009STURTZ v. FISCHER. (Supreme Court, Appellate Division, First Department. June 11, 1897.) Argued before RÜMSEY, PATTERSON, O’BRIEN, INGRAHAM, and PARKER, JJ.
Headnote
Premature Action.An action for goods sold and delivered was prematurely brought where it appeared that plaintiff had éxtended the time of payment by accepting defendant’s notes, the face value of which aggregated the amount of his indebtedness, and none of which had matured at the time of-the commencement of such action.
Appeal from trial term.
Action by Frederick Sturtz against Frederick S. Fischer. From a judgment for damages and costs, entered on the verdict of a jury, in favor of plaintiff, defendant appeals.
Reversed.
Leopold Leo, for appellant.
George S. Hastings, for respondent.
This is an action for goods sold and delivered. As matter of defense, the defendant alleged in his answer, and proved upon the trial, that the plaintiff extended the time of payment of such indebtedness, and, to that end, accepted defendant’s several notes, the face value of which aggregated the amount of defendant’s indebtedness; and that not one of such notes had matured at the time of the commencement of this action.* The action was therefore prematurely brought. Martens-Turner Co. v. Mackintosh, 45 N. Y. Supp. 275 , handed down May 7th.
The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.