130 N.Y.S. 412 | N.Y. App. Div. | 1911
The cashier, as a witness, stated that he had informally demanded payment of the note from Gilbert a dozen of times, hut that they were not formal demands of the hank. The note, apparently was not presented and no request or demand was made on Mrs. Kennedy, who joined with Gilbert in making the note. The trial court instructed the jury, in substance, that a mere informal talk asking payment of a note and not accompanied with a presentment of it or intended as a formal presentment and demand was not sufficient to put the note in dishonor. I think this' instruction was well within sections 130 and 134'of the Negotiable Instruments Law. (Gilpin v. Savage, 201 N. Y. 167.)
Unless a formal presentment and demand was' made at the bank an informal demand on Gilbert was not such a demand as the law contemplates as- á basis for charging the indorser if the note is treated as not an obligation of the estate, for, in the case of joint debtors, the demand must be made upon both. (Neg. Inst. Law,
If the obligation is not a note of the estate, it was clearly the note of Gilbert and his mother. These informal demands, however, were important circumstances bearing upon the question whether the note was actually presented for payment within a reasonable time. .
It is urged that it was error to permit the plaintiff to prove that -it was the custom of banks to hold for years demand paper with an indorser, if the parties were good and the bank did not require the funds.
The case was submitted to the jury upon the theory that the question for them to determine was whether the presentment was made within a reasonable time. This evidence cannot
It is urged that this note was not the note of the éstate, but the individual note of Gilbert and his mother. A part of the note was apparently for an estate matter, and Gilbert and his mother and the two sisters assented to the use of the name of the estate as a maker to the note, and they are hot in á position, therefore, to complain, in considering the question of reasonable time, that the bank treated the note as an obligation of the estate. If it was an obligation of the estate, pressing the makers crowded the estate and was prejudicial to the interests of the indorsers as well as to the makers, all of whom were, interested in the estate.
The form of the note, the fact that the bank was informed that the family was not in a position to pay it, and that forbearance was requested by the person representing the estate, are circumstances which the jury had the. right to give some weight to in determining whether the bank had unreasonably delayed presenting the note for payment.
The relationship and intimate association of the parties to the note, and all the facts and circumstances surrounding the situation, were also proper elements for consideration.
Under all the circumstances, it was a pure question of fact, and we cannot say that the determination of the jury is against •the evidence. '
The judgment and order should, therefore, be affirmed, with costs. .
Judgment and order unanimously affirmed, with costs.
