21 Misc. 311 | N.Y. App. Term. | 1897
The action was upon a promissory note, dated June 3, 1896, made by George Theiss and John Henry Theiss, in
No argument is required to show the appellant’s position to be untenable. A bare perusal of the complaint, or allusion to its contents, demonstrates a consideration for the indorsement.
It is alleged, and the demurrer admits (Cutler v. Wright, 22 N. Y. 472), that the note was indorsed and accepted in extinguishment — that is to say — payment of a debt owing from "the maker at the time. ' Obviously, an inquiry is not to be, touching the adequacy of the consideration, but whether or not there was any consideration; and that the relinquishment of a right to proceed against the makers upon their pre-existing debt furnished a consideration is clear upon principle and authority. 18 Am. & Eng. Ency. of Law, 167; Noel v. Murray, 13 N. Y. 167; Carter, Rice & Co. v. Howard, 17 Misc. Rep. 381.
Viewing the complaint, however, in the aspect assumed for the, appellant, that th¿ indorsement was accepted as a mere security for the payment of the makers’ debt, the allegations likewise import a "consideration. It is alleged that the indorsement was made to induce the plaintiff to extend the makers’ credit, that it was accepted for such purpose, and that the credit was accordingly extended.. That the note was by its' terms payable on demand did not conclude the plaintiff from showing by proper evidence that payment of the debt was .not, to be enforced for a stipulated time.
The judgment should be affirmed, with costs.
Daly, P. J., and McAdam, J., concur.
Judgment affirmed, with costs.