Hyperlawhypertext legal database Clark v. Lake Avenue Permanent Savings & Loan Ass'n 48 N.Y. St. Rep. 189

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Clark v. Lake Avenue Permanent Savings & Loan Ass'n

48 N.Y. St. Rep. 189 Court N.Y. Gen. Term Decision date 1892-10-21 English

Delivered by Macomber, J.

Contents

Majority

p. 189
Brackett H. Clark, Resp’t, v. The Lake Avenue Permanent Savings & Loan Association, Impleaded, App’lt.
(Supreme Court, General Term, Fifth Department,
Filed October 21, 1892.)

Headnote

1. Bills and notes—Negotiable instrument.
In an action by the transferee on the following instrument: “ The Lake Avenue Permanent Savings & Loan Association, Rochester, N. Y., September 3, 1890. Mr. Z., Treas. Pay to the order of F. sixteen hundred and fifty-one dollars for S. loan. Signed, A. Prest., McK. Sec’y.” (countersigned) “ Correct F.”, Held, that the instrument was an accepted draft and negotiable.
2. Same—Time oe payment—Interest.
No time of payment being specified, such draft was due immediately upon delivery and bears interest from that time.
Appeal by the defendant, The Lake Avenue Permanent Savings & Loan Association, from a judgment of the county court, entered on the 25th day of March, 1892.
The- action was upon the following instrument:
“ The Lake Avenue Permanent Savings & Loan Association, Rochester, N. Y., September 3, 1890.
“ Mr. F. W. Zollar, Treas. Pay to the order of D. C. Feeley, sixteen hundred and fifty-one and fifty hundredths dollars, for William Shay loan (1,651.50.)
“(Signed) J. A. Ashton, Pres’t
“J. E. McKelvey, Secretary.”
Countersigned, “ Correct, D. C. Feeley.”
This instrument was, by endorsement, transferred by D., C. Feeley to William Shay, and by the latter to the plaintiff, who took the same in good faith. The action was begun in the municipal court of the city of Rochester, where by default a recovery was had of the balance unpaid upon the ihstrument of $351.50, besides costs. The defendant appealed to the county court for a new trial, which was there had before the county judge without a jury, and resulted in- findings by him to the effect that the sum of $417.51 was due and unpaid upon the instrument and directed judgment for the plaintiff accordingly.
D. C. Feeley, for app’lt; Myron T. Bly, for resp’t.

We think this was an accepted draft and transferable by endorsement and delivery to the plaintiff. It falls exactly within the definition given by Daniel on negotiable Instruments, vol. 1,. page 38 ; for it was the direction to Mr. Zollar, the treasurer of the company, to pay absolutely and at all events the sum of $1,651.50 to a third person named therein (Mr. Feeley), or to any other person to whom Mr. Feeley might order it to be paid. It is shown, however, that D.

p. 190
tamed in the articles' of association of the defendant, of which William Shay was a member. That provision of the articles of association is as follows : “ Every shareholder shall be entitled to a loan of $105 for each share held by him or her when there is sufficient money in the treasury, and the security offered is satisfactory to the board of directors.” But the plaintiff was not in any way associated with the company and was not bound by any of its by-laws. Shay, as a member of the association, had effected the loan by mortgage which had been approved by the society ; and this bill of exchange was by him turned out to the plaintiff in part for money loaned to him by the plaintiff, being a balance of the unpaid purchase money for the mortgaged premises. The instrument was one of those referred to by Tiedeman on Commercial Paper, page 211, § 128, and may, according to that author, be treated as negotiable, either as an accepted bill or promissory note. This is the view taken by the courts in the cases of Bull v. Sims, 23 N. Y., 570 , and Kelley v. The Mayor, etc., 4 Hill, 263 , and Fairchild v. Ogdensburgh Railroad, 15 N. Y., 337 .

It is further urged upon our attention- that the instrument does not bear interest. In this, also, we are constrained to differ from the learned counsel for the defendant. Ho time of payment being made, it was due immediately upon delivery, and interest may be reckoned from that time. Chester v. Jumel, 125 N. Y., 254 ;. 35 St. Rep., 4 , and cases there cited.

We think the disposition made of the case by the learned county judge was in all respects correct, and it follows that his judgment must be affirmed.

Judgment of the county court of Monroe county appealed from affirmed, with costs.

Dwight, P. J., and Lewis, J., concur.