121 N.Y.S. 923 | N.Y. App. Div. | 1910
In this action the plaintiffs sue upon a demand note executed by defendant. The sole defense is founded upon a general release, sealed and signed by plaintiffs. A reply, interposed by direction of the court, sets up, somewhat inartiticially, that while the release was given or intrusted to defendant it was not delivered, had no legal inception or effect as a release, and was agreed to be returned to plaintiffs upon demand. The facts as developed upon the trial, and not disputed, were that defendant, after he had given his note to plaintiffs, informed them that another creditor had begun suit against him for a considerable sum and threatened to throw him into bankruptcy; that he considered plaintiffs’ claim a debt of honor which he proposed to pay in any event, and that - in case he was thrown into bankruptcy he did not wish plaintiffs’ claim to be included in his schedules. He, therefore, asked plaintiffs to execute a general release, to become operative only in case defendant should go into bankruptcy, and to be returned td plaintiffs if defendant did not become a bankrupt. This proof stands wholly uncontradicted, although.the defendant was examined as a witness and testified that he had not gone or been forced into bankruptcy since the date on which the release was signed. The sole question presented by this appeal is, therefore, whether or not it is competent to defeat the apparent effect of a written instrument, which is in form a complete contract and of which there has been a physical delivery, by showing that it was made and delivered upon an oral agreement; that it was not to become a binding contract unless a future and anticipated event should occur, and that such contingency had not arisen: This question seems to have been conclusively answered in. this State in the affirmative: (Reynolds v. Robinson, 110 N. Y. 654; Blewitt v. Boorum, 142 id. 357; Spencer v. Huntington,
The judgment appealed from is affirmed, with costs.
Ingraham, P. J., Laughlin, Clarke and Miller, JJ., concurred.
Judgment affirmed, with costs.