Ueland v. Hibbard — 65 N.Y.S. 790

Majority

p. 790

UELAND v. HIBBARD.

(City Court of New York, General Term.

July 11, 1900.)

Headnote

‘Bills and Notes—Indorser—Demand on Maker—Necessity.

Under St. Minn. 1894, § 2231, providing that no presentment of a demand note to the promisor shall charge the indorser unless made within 60 days from the date of the note, where a demand note, indorsed hy the defendant, was executed and delivered in Minnesota, the failure to so present it to the promisor discharged the defendant.

Appeal from trial term.

Action by Andreas Ueland, as receiver, against Charles B. Hibbard. From a judgment in favor of defendant and from an order denying ¿a new trial, plaintiff appeals.

Affirmed.

Argued before CONLAN and SCOTCHMAN, JJ.

Creevey & Rogers, for appellant.

Omri F. Hibbard, for respondent.

The case was submitted to the decision of the court ■without a jury. The testimony is wholly on commission. The action was brought upon a promissory note alleged in a complaint to have been made and delivered in Minnesota. The note, payable on demand, was made by one Robert H. Young to the order of Andreas Ueland, receiver, and, without being indorsed by the payee named therein, was indorsed by the defendant. The defendant pleaded the statute of the state of Minnesota among other defenses, and it appeared by the law of the state that the note in suit should have been presented within 60 days of the date in order to charge the defendant. 'The presentation within the statute was not proven, and Young, the maker, said that no demand was made upon him for payment within ■60 days after the date of the note.

There is no escape from the very positive evidence presented by the ■ ■printed record as to the rights and liabilities of the indorser of a demand note, and of his clear exemption from liability if presentation is not made to the maker within 60 days from its date. The language «of the Minnesota statute is so emphatic on this point that we quote it,

p. 791

as follows: “No presentment of such note to the promisor and demand for payment shall charge the indorser unless made on or before the last day of said term of 60 days.” St. Minn. 1894, § 2231. The contract was one of a foreign state, the plaintiff a resident of that state, and the defendant a resident of Ottawa, in the province of Ontario, Canada.

We think, for the reasons stated, that the judgment and order appealed from should be affirmed, with costs.

SCHUOHMAN, J., concurs.