113 N.Y.S. 359 | N.Y. App. Div. | 1908
This appeal is from an interlocutory judgment overruling a demurrer to the second and. third causes of action set forth in the complaint. In each case the demurrer was upon the ground that the facts stated did not constitute a cause of action. The second cause of action alleged is to recover upon a promissory note made by the James Freeman Brown Company, a domestic corporation, dated' October 12, 1903, and payable three months after date to the plaintiff at 73 Franklin street, ¡New York. It is alleged in substance, with reference to this cause of action, that the defendant indorsed the note and it was then delivered before maturity to the plaintiff which gave full value therefor, relying on the credit of said indorsement; that before the note became due and on the 7th of December, 1903, an involuntary petition in bankruptcy was filed against the James Freeman Brown Company and a receiver appointed; that on the same day the defendant, as president of the company, pursuant to a vote of the board of directors, filed a written admission of its inability to pay debts and a willingness that it be adjudged bankrupt, and that it was so adjudged on the 20th of February, 1904; that at the maturity of the note the maker was insolvent, its business suspended, its place of business closed, its property still in the possession of the receiver, and that the note was not paid, of all of which facts the defendant then had actual knowledge ; that no part of the note has been paid, except a dividend declared in the bankruptcy proceedings, and that the balance is now due and owing to the plaintiff from the defendant, for which sum judgment is asked. The third cause of action alleged is on another note and the allegations respecting it are substantially the same.
The appellant contends that no cause of action is stated against him as indorser upon the notes because it does not appear that they were presented for payment and notice of non-payment given to
When the notes in question fell due the maker could not pay, the indorser knew it because he had participated in the act which made it impossible for it to pay, and for that reason a failure to present the notes for payment and give him notice of non-payment could not, by any possibility, have injured him.
The judgment appealed from, therefore, is affirmed, with costs, with leave to the defendant to withdraw demurrer and answer on payment of costs in this court and in the court below.
Patterson, P. J., Laughlin, Houghton and Scott, JJ., concurred.
Judgment affirmed, with-- costs, with leave to defendant to withdraw demurrer and answer on payment of costs.
Amd. by Laws of 1898, chap. 336.—[Rep.