14 Barb. 579 | N.Y. Sup. Ct. | 1853
The notes fell due five and seven months from October 30, 1845. That would be on the second of April and June, 1846. The plaintiffs did nothing towards collecting their debts until July, 1846, except sending the notes to their attorneys. They in that month endeavored to settle their claims, and were so far successful as to get the consent of Garrison & Cutler to give their property in payment. But in August, and before this consent was acted on, G. & C. withdrew their consent, unless all the creditors would consent to their discharge. Then the debtors had from $7000 to $10,000 worth of goods on hand, and although embarrassed, were doing business. They had not yet made any assignment.
A creditor acting with the promptness with which a prudent man would attend to his own business, would soon after the knowledge of this refusal, have instituted some proceedings, by suit or negotiation, to collect his demand. But so far as appears, these plaintiffs did nothing whatever from that time until abbto't the 24th of March, 1847; thus allowing seven months,
Edwards, Mitchell and Roosevelt, Justices.]
These two cases were reviewed by Woodworth, J. in Thomas v. Woods, (4 Cowen, 183,) and he held that the limitation of a term was a mere dictum in those cases ; and that the question of due diligence must depend on the circumstances of each case; and that if no injury has resulted from allowing the time to elapse, it may be regarded as sufficient diligence. He says, “ If there is sufficient ground for deeming the difference of time immaterial, then there is no want of due diligence in permitting the May term to pass, without a suit.” Justice Sutherland also speaks of the expressions as to a term, in the above two cases, as mere dicta; and Savage, Ch. J. says in Lamourieux v. Hewit, (5 Wend. 307,) that the limitation of a term was recognized in Kies v. Tifft, and perhaps he is to be understood to say that the objection of delay is not applicable when the original debtor is insolvent. He refers to Thomas v. Woods.
Justice Sill, in a review of the cases, in Burt v. Horner, (5 Barb, 506, 7,) showing that they all recognize the principle that due diligence is required, adds, “ but when there has been delay, the courts have in some instances held it to be consistent (under the circumstances disclosed,) with reasonable diligence, and hence that there was a performance of the condition precedent.” See also the dissenting opinion of Willard, J. in Van Derveer v. Wright, (6 Barb, 552.)
A new trial must be granted; costs to abide the event.