Ayres v. Leypoldt, 6 Daly 91

Ayres v. Leypoldt

6 Daly 91

| New York Court of Common Pleas | 1875

Check Treatment

Lead Opinion

Chábles P. Daly, Chief Justice.

In this case, the note in suit was diverted from the purpose for which it was made, and was received by the plaintiff in part payment for goods sold. The case, therefore, presents the same question which we have passed upon in McAdam v. Cooke, decided at the present term (ante, p. 101). The plaintiff, upon the authority of Weaver v. Bardon (49 N. Y. 236), and Turner v. Tredway (53 Id. 650), was not a bona fide holder of the note before maturity for value. The precedent debt, which it was taken in part payment of, was not evidenced by any writing or written acknowledgment which the plaintiff parted with, nor did they give up any security of any kind upon receiving it. There was consequently no agreement to be implied under such circumstances, to extend the time for the payment of the goods founded upon any new consideration, such as the parting with any security or existing obligation.

*95The decision of the general term, of the Marine Court, therefore, was erroneous. It must consequently he reversed, and the judgment rendered upon the report of the referee affirmed.

Laeeemoee, J., concurred in this opinion.

Concurrence Opinion

Robinson, J.

I concur, upon the ground that the plaintiff, having taken the note in suit in payment of an antecedent debt (not released), was not a Iona fide holder for value.

Judgment reversed.