Hyperlawhypertext legal database Van Etten v. Troudden 8 N.Y. Sup. Ct. 432

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Van Etten v. Troudden

8 N.Y. Sup. Ct. 432 Court N.Y. Gen. Term English

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p. 432
JOHN A. VAN ETTEN, Respondent, v. ONA TROUDDEN and another, Appellants.

Headnote

Mote—collateral security to—when extends time of payment of—Error—when not ground for new trial.
This action was brought against the defendants, as maker and indorser of a promissory note. The answer set up payment, that the plaintiff had accepted a third party (the firm of J. A. Charlton & Co.) as principal debtor for the note, and extended the time of payment with such third party, without defendants’ consent or knowledge. The plaintiff received from the firm of Charlton & Co., a post-dated check, and, subsequently, a note for the amount of the note in suit, but the jury found that they were received as collateral security only, and that plaintiff did not accept the firm as principal debtor.
At the trial, the court charged that “the mere giving or taking of a check or
p. 433
note by a third party, as collateral, does not of itself extend the time of the principal debtor.” Held, that the charge, as applicable to the case, was correct.[1]
The defendant’s counsel requested the court to charge the jury, that if they should find that the plaintiff agreed to accept the firm of Charlton & Co. for the payment of the note in suit, that firm having the defendant Troudden’s money to that amount, such agreement was a payment of the note, and the court refused so to charge. Held, that it erred in so doing; that though the agreement, if made, would not have been technically a payment, yet it would have discharged the debt by way of accord and satisfaction ;[2] but that, as it appeared that the question whether or not such an agreement had been made, had been fairly presented to the jury in the charge of the judge, and they had answered it in the negative, that the judgment would not be reversed.
Motion for a new trial upon a case and exceptions, ordered to be heard in the first instance at the General Term, and an appeal from an order denying a motion for a new trial, made upon the judge’s minutes.
J. E. Van Etten, for the respondent.
A. SehoonmaTcer, for the appellants.

Opinion by Bookes, J.

Present — Miller, P. J., Bookes and Boardman, JJ.

Order affirmed and judgment ordered for plaintiff, with costs.