Usefof v. Herzenstein

119 N.Y.S. 290 | N.Y. App. Term. | 1909

Gildersleeve, J.

The defendant Morris Herzenstein made the following note:

“1000. Mew Yobk. ........., 190

“..............after date..............promise to pay to the order of...........................One thousand dollars at 108 Grand Street, Mew York.

“ Value received. M. Hebzeesteik.”

The entire note was in print, except the words “ One thousand dollars ” and “ 108 Grand Street, Mew York,” and the signature “ M. Herzenstein.” In this form it was endorsed by the defendant David Herzenstein and then delivered to plaintiff for value, on December 27, 1904, and said Morris Herzenstein, in the presence of David Herzenstein and without objection from him, told plaintiff that she “ could fill in the dates at any time that she wanted the money, because he did not know when he would be able to pay.” Sometime in October, 1907, nearly three years later, the defendant Morris Herzenstein ran away and disappeared; and, in January, 1908, the plaintiff filled in the blanks so as to make the note read as follows: “$1000. New Yoke, Dec. 27, 1904.

“January 15, 1908, after date I promise to pay to the order of B. Hsefof One thousand dollars at 108 Grand Street, New York. “ Value received. M. Herzensteiw.”

On January 15, 1908, the note thus filled in was protested; and plaintiff sued the maker and endorser on the said note and recovered judgment. The endorser appeals. The Negotiable Instruments Law (§ 33) provides that “where the instrument is wanting in any material particular, the person in possession thereof has a prima facie authority to complete it by filling up the blanks therein.” See also National Exchange Bank v. Lester, 194 N. Y. 461, 471. In the latter case the court said: “ Where a party to commercial paper intrusts it to another, with a blank therein designed to be filled up with the amount, such party is liable to a bona fide holder of the instrument for the amount filled in, even though it be larger than was stipulated with the person to whom immediate delivery was made. * * * So, also, a note executed with a blank therein for a statement of the place of payment is not avoided in the hands of a bona fide holder for value by the insertion in the blank of a place different from that agreed upon by the original parties.” Section 205 of the Negotiable Instruments Law reads thus: “ Where a negotiable instrument is materially altered without the assent of all parties liable thereon, it is avoided, except as against a party •who has himself made, authorized or assented to the alteration, 'and subsequent endorsers. But when an instrument has been 'materially altered and is in the hands of a holder in due course, not a party to the alteration, he may enforce payment thereof according to its original tenor.” The endorser, by not objecting, assented to the permission given by the maker to the holder to fill in the dates; while, under section 33 of the Negotiable Instruments Law, as we have seen, she had the right to complete the note by filling up the blanks. The appellant claims that the note was a demand note, and that plaintiff lost her rights by not presenting the note and protesting the same within a reasonable time after receiving the ¡said note. A demand note is one expressly payable on demand, or one in which no time for the payment is expressed. See Neg. Inst. Law, § 26. But the note in suit was not expressly payable on demand, and blanks were left in which to put. in the dates; and, as we have seen, plaintiff was expressly authorized by the maker to fill in the said blanks, to which permission the endorser assented. The note, in reality, was not altered, but merely completed by the necessary filling in of the blanks. All the issues of fact were correctly submitted to the jury, who, upon sufficient evidence, found for plaintiff in the sum of $1,000, the amount of the note. Under direction of the court, however, the jury altered their verdict by adding interest from the date of the note, December 27, 1904. The defendant’s objection to this alteration of the verdict was well taken. While plaintiff had a right to complete the note, she was without authority to alter the same by adding interest. The note does not call for any interest, either in its original or completed form, nor is there any blank in which to add the words “ with interest,” nor was plaintiff given iany permission by the defendants to add interest, i The judgment must be modified by deducting therefrom the amount- allowed for interest previous to January 15, 1908, when it became due and was protested; and, as so modified, affirmed, without costs of this appeal to either party.

Seabury and Lehman, JJ., concur.

Judgment modified and, as modified, affirmed, without costs of this appeal.