86 N.Y. 547 | NY | 1881
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *550
If the defendant had, before maturity of the notes, sought to enforce the judgment against Tong, he would have failed in face of an averment that by those notes the time of payment had been extended. They were made by Tong and Lynch as principals and were negotiable. They constituted a new contract, to which the plaintiff's intestate was not a party, and furnished a sufficient consideration for the extension of payment implied from the terms of the notes. (Fellows v. Prentiss, 3 Denio, 512; Hubbard
v. Gurney,
It follows, that the admission by the defendant without qualification, that the surety was not present when the notes were signed, relieved the plaintiff from the necessity of further proof. It was assumed by the defendant upon the motion for a *553 nonsuit, that all the facts existed as alleged by the plaintiff, except those specifically pointed out. As the case then stood an extension of the time of payment had been granted to the principal debtor, by reason of which the sureties' own right of action was suspended, and the only fact wanting to complete the plaintiff's case was the non-consent thereto of the intestate This was supplied by the admission of the defendant and thus aprima facie case established. It was not error, therefore, in the trial judge to refuse to dismiss the complaint.
Second. The requests made by the defendant for findings in his favor stand wholly upon the evidence given by the plaintiff's assignor. The learned counsel for the appellant argues that the court had no right to disregard it. We think otherwise. Assuming that the narrative was in its words sufficient, it was for the judge to whom it was addressed to consider the credit due to the witness. He was the assignor of the judgment, bound, therefore, to maintain its validity (Furniss v. Ferguson,
The judgment should be affirmed.
All concur.
Judgment affirmed.