69 N.Y.S. 221 | N.Y. App. Div. | 1901
The action was brought to recover the balance unpaid upon a promissory note made by the appellant’s testator. The defenses interposed were want of consideration and the Statute of Limitations. The court decided that there was a consideration for the note and that a recovery thereon was not barred by the Statute of Limitations. The note "drew interest only from the expiration of one year from the death of the maker. The court allowed interest from-the date of the death; one year’s interest was, therefore, improperly allowed in the amount of recovery, and to this extent the judgment must be modified and reduced; otherwise the judgment is correct and should be affirmed.
The note read as follows: .
“ Newabk, June 2^th, 1874.
“For value received, I promise to have paid out of my property One thousand and fifty dollars after my death, • "if not paid before, t,o Florence E. Randall; now if this is not paid within six years it is to be renewed, if brought to me,, if not renewed .by me it is collectible, but if I shall see fit to renew it, it shall be renewed without interest as often as I shall see fit up to my death,. then the amount must be paid out of my property within one year thereafter.
“ JAMES BRIDGER.”
Bridger was appellant’s testator. He drew the note himself. It is peculiar in form in some respects, but there can be no doubt that it contains an agreement to pay the respondent $1,050 within one year after his death, without intérest, unless paid, or except so far as paid during his lifetime. The money was not due and no action to recover the same could be maintained until the expiration of one year after his death, which occurred April 3, 1896. This being so, the Statute of Limitations was no defense to the present action. The only question remaining is whether the court correctly decided ' that there was a consideration for the note. It is unnecessary for us to recite or discuss the evidence as to consideration given on the trial. The facts found by the court, from the evidence, and decided to constitute such consideration, are fully set out in the decision. We need only state briefly: That about 1862 one Andrews Rhine-hart of Newark died, leaving a widow and three children, and leaving real property, of which-he was in possession under a contract to purchase. In September, 1863, James Bridger, the maker of the
For the reasons hereinbefore stated, the judgment appealed from should be modified by deducting the one year’s interest improperly allowed upon the note, and as so modified affirmed, without costs of this appeal to either party.
All concurred.
Judgment modified by deducting one year’s interest improperly allowed upon the note, and as thus modified affirmed, without costs of this appeal to either party.