Hyman v. Doyle

103 N.Y.S. 778 | N.Y. Sup. Ct. | 1907

Giegerich, J.

The action was brought upon a promissory note made payable “ on demand after date ” at a place specified. The proposition most strenuously contended for by the appellant is that the complaint should have been dismissed because of the failure on the part of the plaintiff to prove any demand. Decisions in other jurisdictions are relied upon in the appellant’s brief, but the rule in this State is that, as between the maker and the holder, a promissory note payable upon demand is due forthwith. Wheeler v. Warner, 47 N. Y. 519; DeLavallette v. Wendt, 75 id., 579; McMullen v. Rafferty, 89 id., 457; Cottle v. Marine Bank, 166 id., 53; People v. St. Nicholas Bank, 44 App. Div. 313; Abbott’s Forms of Pleading, 221, and authorities there cited. The only effect of qualifying a promise to pay by a mere specifying of demand at a fixed time and place is that, if the debtor is ready with the money at that time and place and no demand is made, he is exonerated from paying costs and interest for subsequent time, provided he keeps ready, pays the money into court when sued and pleads these facts in his answer. Tied, Cbm. Paper, § 310, and cases cited; Lockman v. Moore, 57 N. Y. 360; Abbott’s Forms of Pleading, 221, and authorities cited. The defense that the plaintiff was not the real party in interest was set up, but was not substantiated by the evidence.

The judgment should be affirmed, with costs.

Gildebsleeve and Eblangeb, JJ., concur.

Judgment affirmed, with costs.