Opinion
Argued March 31st, 1870
Decided June 23d 1870
R.H. Underhill, for the appellants.
John H. Reynolds and Samuel Hand, for the respondent.
There was evidence tending to prove all the facts found by the court at Special Term, and hence in deciding this appeal we must assume all such facts to be true.
On the 7th day of November, 1860, the bank of Sing Sing was indebted to plaintiff in the sum of $2,069.56 upon a protested draft drawn by said bank in New York in favor of plaintiff, and also in the sum of $620.46 for moneys paid thereto collected for plaintiff. At the same time the said bank held checks and notes, to the amount of $787.52, which had been forwarded to it by plaintiff for collection. The said Sing Sing bank had become financially embarrassed, and on that day Olcott, an agent of the plaintiff, called upon the said bank and demanded payment of the said protested draft, and of the $620.46 which had been collected for plaintiff, and also demanded a return of the checks and notes which had been sent to it by plaintiff for collection. He had an interview with the president, cashier and directors of the said bank, and they told him that their bank was temporarily embarrassed; that other creditors of the bank had given them time and had forborne to withdraw their collection paper, and that in consideration of doing so, notes similar to the one in suit had been given to them, and they requested the plaintiff not to press its claims by taking legal action, and not to withdraw the notes and checks held for collection, and requested a months time. Plaintiff's agent assented to such request; and in consideration thereof they, the said president, cashier and directors, executed and delivered the note in suit to the said agent for the plaintiff. Afterward, on the 8th and 9th days of November, the said bank received and credited to the plaintiff on its books the money for the checks and notes held by it for collection. And thereafter, also paid the protested draft.
Upon such a state of facts I do not see how it can well be claimed that there was not a consideration to uphold the note in suit. As to all the indebtedness that had accrued prior to the 7th day of November, the plaintiff had made a valid agreement to give time and forbear suit for one month from the 1st day of November. It is now well settled that such an agreement is a sufficient consideration to uphold the note of a third party, given to secure or pay the debt. (Edwards on Bills, 223; Watson v. Randall, 20 Wend., 201; Burns v. Rowland, 40 Barb., 368; Traders' Bank of Rochester v. Brodner, 43 Barb., 379; Ball v. Coman, 37 N.Y., 440.) As to that portion of the indebtedness that accrued after the 7th of November, the credit was given upon the faith of this note. In consideration of the giving of this note, the plaintiff agreed not to withdraw the collection paper, and permitted the Sing Sing bank to receive the money. Hence, as to the entire amount claimed in this action and recovered, there was a sufficient consideration to uphold the note; and hence, without any further discussion of principles of law well established, I concur in affirming the judgment.
SUTHERLAND, J., also read an opinion for affirmance, to the same effect.
All concur. Judgment affirmed.