63 Misc. 289 | N.Y. Sup. Ct. | 1909
The pleadings are oral. The complaint is: “ Money had and received.” The answer is: “ General denial, bill of particulars, counterclaim for $775.” The'parties agreed upon a conceded state of facts as follows: Plaintiff has on deposit with defendant bank $374.29, which has been demanded and not paid. Defendant is the owner and holder of a promissory note for $775, signed by plaintiff. The said note was signed by plaintiff on June 11, 1907, and there was no other handwriting then upon the said note, except plaintiff’s signature; and plaintiff, on the said day, delivered the same to G. C. Darlington, her father. The note itself is as follows:
" $775.00 Mew York, Oct. 11th 1907.
“ Four months after date I promise to pay to the order of G. C. Darlington Seven hundred and seventy five no/100 dollars at Hamilton Bank of Mew York City Tremont Branch, 705 Tremont Avenue. Value received.
“ Marguerite B. Darlington.”
The plaintiff became twenty-one years of age on the 26th day of August, 1907. The handwriting on the note, above the signature, is that of G. C. Darlington, the payee. On the 11th of October, 1907. the said note was duly indorsed by the said G. O. Darlington and delivered to the defend
“ Gentlemen.— I am attorney for Miss Marguerite B. Darlington, whose signature appears upon a certain note in your possession for $800, due February 11, 1908. This note was apparently used by G. C. Darlington, my client’s father. Please take notice that, when the said note was signed, my said client, the maker, was an infant, and hereby notifies you that she disavows the act, and that the said note will not be paid when presented.”
This letter was duly received by defendant. The plaintiff received no benefit, directly or indirectly, from the said note, and the moneys she sues for herein are not a part of the proceeds thereof; but the defendant never at any time had notice of these facts. The plaintiff sued for a part of the balance to her credit in the defendant bank. The defendant at the trial reduced its counterclaim from $775 to $374.29. The court gave judgment in favor of defendant against plaintiff for $374.29 damages, and $27.31 costs. Plaintiff appeals. It will be observed that, when the note was negotiated and the defendant paid full value therefor, plaintiff was an adult; as it will be remembered- that, while the note was signed on June 11, 1907, and she became of age on August 26, 1907, the note bore the date October 11, 1907, and was negotiated on October 11, 1907. She did not repudiate the note, as we have seen, until December 4, 1907, nearly four months after she became of age, and only about two months prior to the time when the note became due. The learned counsel for the respondent urges that, where an instrument, or an acceptance, or any indorsement thereon, is dated, such date is prima facie the true date of the making, drawing, acceptance or indorsement, as the case may be, and that, for legal purposes, a note is to be presumed as made or drawn when it was delivered, and that, as a check or note -has no inception until delivery, for all legal purposes it is to be presumed as made on the day it is
The judgment must be reversed and, as there is no dispute as to the facts, judgment absolute is ordered for plaintiff for the sum of $181.80, the amount named in the summons, with appropriate costs in the court below, and costs of this appeal.
Present: Gildebsleeve, Dayton and Goff, JJ.
Judgment reversed and judgment absolute ordered for plaintiff, with costs in court below, and costs of this appeal.