205 A.D. 78 | N.Y. App. Div. | 1923
The action was brought by the plaintiff as the assignee of a note made by the defendant Hydrocarbon Converter Company,
It appears that the defendant Nevins is the president of the defendant corporation; that he executed the note as president of the said corporation and indorsed it individually; that the office of the corporation was kept in the office of Nevins, and its books maintained there; that on the day before the maturity of the note the defendant Nevins, as president as aforesaid, executed and individually indorsed a proposed renewal note, and forwarded the- same, together with a check to cover the interest due, to the plaintiff’s assignor; that the defendant Nevins knew that the maker, the defendant corporation, did not intend to pay the note at maturity, and could not pay it, because the defendant Nevins advanced to the corporation all the money used by the latter, which had no bank account, and never issued checks in payment of any bills, all of such being paid by the defendant Nevins.
It is conceded that the sending of the renewal note constituted a waiver of presentation. This, taken in connection with all the other circumstances mentioned above, shows also a waiver of notice of protest. (O’Bannon Co. v. Curran, 129 App. Div. 90; Sheldon v. Horton, 43 N. Y. 93.) Had the note been presented, either it would not have been paid or would have been paid by the defendant Nevins; and in either event said defendant must necessarily have had notice of such presentation, and if it had not been paid, of the non-payment. The defendant Nevins occupied such a position towards the Hydrocarbon Converter Company that he possessed more notice than any notice of protest in and by itself could have possibly given. Acts in which said defendant participated brought about this situation, and hence the waiver required by the statute is present. (Neg. Inst. Law, § 180; O’Bannon Co. v. Curran, supra; Sheldon v. Horton, supra.)
It follows that the judgment should be reversed, with costs and disbursements, and judgment directed for the plaintiff against the defendant Nevins as demanded in the complaint, with costs.
Dowling, Page and Merrell, JJ., concur.
Judgment and order reversed, with costs, and judgment directed for plaintiff against the defendant Nevins as demanded in the complaint, with costs.