Van Vliet v. Kanter

119 N.Y.S. 187 | N.Y. App. Term. | 1909

Gildersleeve, J.

On March 14, 1898, defendant made and delivered to plaintiff’s testator, for value, the following note:

“ $150.00 New York, March 14, 1898.

“ On demand after date I promise to pay to the order of George Van Vliet One Hundred and fifty Dollars at my store 852 B’way.

“ Value received. Fred’k Kanter.”

It is conceded that payment was demanded formally on. July 2, 1908, and that payments aggregating eighty-two dollars and fifty cents had been received and applied upon the principal of the note prior to such formal demand; and defendant’s liability on the note is not disputed. A counterclaim on the part of defendant, however, amounting to sixty-three dollars and fifty cents, with interest from November 1, 1908, is also conceded. The only point in issue is whether interest should be allowed on the note from its date and delivery, March 14, 1898, or from the date of the actual formal demand, July 2, 1908. The court below allowed interest from the date and delivery of the note. As we have seen, the note is payable on demand, and the demand is presumed to have been made at the time of the delivery of a demand note, at which time the note became payable and the right of action complete. Church v. Stevens, 56 Misc. Rep. 572, and cases cited. In the case of a demand note the word “ demand ” is not to be treated as a part of the contract, but is used to show the debt is due (McMullen v. Rafferty, 89 N. Y. 547) ; and, as stated in Ledyard v. Bull (119 id. 63), “ money payable on demand does not draw interest until after demand.” As interest is not payable by the terms of the contract, it is recoverable on the theory of damages for the detention of the principal and from such time as defendant was placed in default (1 Suth. Dam. 619, 620; Matter of Trustees, 137 N. Y. 95) ; and, as a promissory note payable on demand is due forthwith upon delivery of the note (Hyman v. Doyle, 53 Misc. Rep. 597), interest became payable on such delivery as damages for the non-payment of the money due. Ledyard v. Bull, 119 N. Y. 74.

The result reached by the court below was correct, and the judgment must be affirmed, with costs.

Seabury and Lehman, JJ., concur.

Judgment affirmed, with costs.