Eisenlord v. Dillenback

22 N.Y. Sup. Ct. 23

• Court: New York Supreme Court
• Decided: September 15, 1878
• Status: Published

Opinion

Per Curiam:

The endorsement imposed upon the transferee the duty of demanding payment of the makers within a reasonable time after the transfer to him; and, in case of non-payment, giving notice to the endorser. The demand ivas not made in this case until more than two years after the transfer; hence the indorser was released. (Leavitt v. Putnam, 1 Sand., 199; S. C., 3 Comst., 494; Tyler v. Young, 30 Penn. St., 143; 1 Pars, on Notes, 382; Van Hoesen v. Van Alstyne, 3 Wend., 75; Alexander v. Parsons, 3 Lans., 333; Sanborn v. Southard, 25 Me., 409.)

Merritt v. Todd (23 N. Y., 28) is not in point. That was not a transfer of over-due paper. The indorsement was there made for- the accommodation of the maker. The note had no valid inception until after it was indorsed. The note was payable on demand, with interest. The court held this to be a continuing security, and hence a demand was not necessary within a limited time. So of Pardee v. Fish (60 N. Y., 265), which was an action on a certificate of deposit drawing interest, which the court held to be the same as a note payable on demand, with interest. Both these papers being, and having been intended to be, continuing securities, no duty of presentment to makers for payment was imposed upon the indorsee in order to hold the indorser. Demand might be made at any time.

In the case under consideration, the law implies a different con- . tract. The paper was over-due. It ivas not a demand note. It was not a continuing security. Hence the law implies a contract by the indorsee, that he will proceed with reasonable diligence to demand payment, and give notice if not paid. Failing in this, the indorser is dischai’ged.

We think the decision of the court below right, and that the judgment should be affirmed, with costs.

Present — Learned, P. j., Bocees and Boardman, 33.

Judgment affirmed, with costs.