Wallach v. Kind — 41 N.Y. St. Rep. 93

Majority

p. 93

Julius Wallach et al., App’lts, v. Rosa Kind et al., Resp’ts.

(City Court of New York, General Term,

Filed November 16, 1891.)

Headnote

Bills and notes—Extension of time of payment.

In an action upon three promissory notes the answer alleged that the

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time of payment had been extended. Defendants introduced in evidence a written agreement to extend in consideration of the payment of $15 down and $15 each month, and testified that the $15 was paid as a new and additional consideration for the extension. Plaintiffs introduced in evidence the first note with said $15 endorsed as a payment thereon, hut gave no testimony themselves. Held, that the court properly found that the extension was valid and based on a new and valuable consideration.

Appeal from a judgment rendered by the court for the defendants.

Leonard Bronner, for app’lts; Johnson & Johnson, for resp’ts.

This cause was by consent tried, without a jury, before the judge, who thus became the trier of the issues of fact as well as those of law. This action was commenced on May 2, 1891, upon three promissory notes for $50 each, dated November 4, 1890, payable respectively at one, two and three months after date, and were made by defendant Eosa Kind to her own order, endorsed by the other defendant, and delivered to plaintiffs. The defense set forth in the answer was, that on February 2, 1891, the plaintiffs by written agreement extended, for a valuable consideration, the time of the payment of these notes for ten months from that date. The defendants on the trial read in ■evidence this written extension of February 2, which was signed by plaintiffs and which recited that in consideration of the sum of $15 to plaintiffs, then paid, and upon payment of $15 regularly each month, they agreed to extend the payment of these 'three notes, provided they were fully paid within ten months from that date. The plaintiffs read in evidence the one month note which fell due on December 17, 1890, upon the back of which was credited the $15 as a payment on account as made on the day the extension agreement was delivered. Plaintiffs’ counsel contends with great vigor that notwithstanding the recital in this agreement, that plaintiffs had received the $15.as a new consideration for the extension, still, that as they had themselves produced this note with that sum so credited thereon, it was clearly shown that this $15 was no new consideration passing to them, and hence - that the agreement of extension was not binding on them. However, this credit on the note made by plaintiffs themselves was not properly admissible against the defendants, especially when it was in such direct conflict with the recital in the agreement signed by plaintiffs. However, the same is in evidence without objection from or exception by defendants, and must be considered for all it is worth.

About the only disputed question of fact which the judge was called upon to determine was whether this payment of fifteen dollars was a new consideration moving from defendants to plaintiffs for the extension granted by their agreement, or whether it was merely a payment on account of the one month note which defendants were already legally obligated to pay. And this disputed question of fact was decided against the plaintiffs’ contention by the judge, as appears by his second finding of fact, whereby he finds that the extension agreement was valid and binding,> having been given for a new and additional considera

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tian, namely, “ the fifteen dollars then and there paid them by defendants,” and again this result is shown by his refusal to find plaintiffs’ seventh request, that this fifteen dollars “ was paid to be applied, and was actually then and there- applied on the one month note, which said note had already matured.” The record shows that the judge could not have fairly decided any way other than against the plaintiffs, for neither of them took the witness stand, nor did they give any evidence whatever which tended to show that this payment was credited, or intended by defendants to be credited, as a payment on account of this note, except that on the note read in evidence they had endorsed such payment, while, on the other hand, we have the testimony of the defendant to whom the extension agreement was delivered that the fifteen dollars was paid as a new and additional consideration for such extension, and stronger evidence still is the recital in the agreement itself that this sum was so paid. But if doubt existed, the same would be dispelled by attention to the sworn statement of the plaintiff who, on May 4, 1891, verified the complaint. He swears that the complaint is true to his own knowledge, yet it is alleged in the complaint that the one month note, upon which is endorsed the payment of fifteen dollars, as made in February, was then, May 4, wholly unpaid, and “ that no part of said sum has been paid, and there is now due and owing the plaintiffs from defendants the sum of fifty dollars, with interest thereon from the 17th day of December, 1890 (the one month note was dated November 14,1890,), besides $1.30 protest fees. This judgment must be affirmed, with costs.

Newburger, J., concurs.