First National Bank v. Carleton

Appellate Division of the Supreme Court of New York

First National Bank v. Carleton

43 A.D. 6, 59 N.Y.S. 635, 1899 N.Y. App. Div. LEXIS 1915

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 1, 1899

StatusPublished

This text of 43 A.D. 6 (First National Bank v. Carleton) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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First National Bank v. Carleton, 43 A.D. 6, 59 N.Y.S. 635, 1899 N.Y. App. Div. LEXIS 1915 (N.Y. Ct. App. 1899).

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Nash, J.:

The fact stated in the confession, that the note was duly discounted by the bank, implies that the note was indorsed by Carleton to the bank and presented in the usual course of business for discount ; that it was taken by. the bank before maturity and the ' amount thereof, less the discount, paid over the counter of the bank to the customer presenting the note for discount. The whole transaction between the indorser and the bank is stated when it is said that the note was duly discounted; that, together with the note set out in the confession in full, and the recital that the note was not paid at maturity, that it remains wholly unpaid and the amount thereof due from the indorser to the bank, constitutes the required statement of “ facts out of which the debt arose.” By the language of the commercial world a discount by a bank means, ex vi termini, a deduction or drawback made upon its advances or loans of money upon negotiable paper, or other evidences of debt, payable at a future day, which are transferred to the bank. (9 Am. & Eng. Ency. of Law [2d ed.], 468.) To discount means to lend or advance the amount of a security, deducting interest. (Com. v. Commercial Bank, 28 Penn. St. 396.) The origin and consideration of the note must be stated on confession of judgment by the maker, but as the [8]*8indorser is holden without any consideration moving to him, none need be stated. The object of the statute in requiring a detailed statement of the facts and circumstances out of which the indebtedness arose, is to inform other creditors of the dealings and transactions which had taken place between the parties to the judgment,, that they might ascertain by proper inquiry that the indebtedness-was real and not fictitious, and satisfy themselves, if such was the fact, that the judgment was based on a good consideration and valid in law. This requirement is not only here fully met, by the statement, but the records of the bank afforded the fullest opportunity to the other creditors to ascertain by proper inquiry the particulars of the transaction.

The confession states that the note was not paid at maturity, and that it remained wholly unpaid and that the amount thereof was then due from the indorser to the bank. The indorser could have waived a defense of want of demand and notice, but it is plainly to be inferred that the note was protested, the statement that it was not paid at maturity and thereupon duly discounted, being evidently intended for “ duly protested.”

The order should be affirmed, with ten dollars costs and disbursements.

Hardin, P. J., and Adams, J., concurred; McLennan and; Spring, JJ., dissented.

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Nash, J.:

The fact stated in the confession, that the note was duly discounted by the bank, implies that the note was indorsed by Carleton to the bank and presented in the usual course of business for discount ; that it was taken by. the bank before maturity and the ' amount thereof, less the discount, paid over the counter of the bank to the customer presenting the note for discount. The whole transaction between the indorser and the bank is stated when it is said that the note was duly discounted; that, together with the note set out in the confession in full, and the recital that the note was not paid at maturity, that it remains wholly unpaid and the amount thereof due from the indorser to the bank, constitutes the required statement of “ facts out of which the debt arose.” By the language of the commercial world a discount by a bank means, ex vi termini, a deduction or drawback made upon its advances or loans of money upon negotiable paper, or other evidences of debt, payable at a future day, which are transferred to the bank. (9 Am. & Eng. Ency. of Law [2d ed.], 468.) To discount means to lend or advance the amount of a security, deducting interest. (Com. v. Commercial Bank, 28 Penn. St. 396.) The origin and consideration of the note must be stated on confession of judgment by the maker, but as the [8]*8indorser is holden without any consideration moving to him, none need be stated. The object of the statute in requiring a detailed statement of the facts and circumstances out of which the indebtedness arose, is to inform other creditors of the dealings and transactions which had taken place between the parties to the judgment,, that they might ascertain by proper inquiry that the indebtedness-was real and not fictitious, and satisfy themselves, if such was the fact, that the judgment was based on a good consideration and valid in law. This requirement is not only here fully met, by the statement, but the records of the bank afforded the fullest opportunity to the other creditors to ascertain by proper inquiry the particulars of the transaction.

The confession states that the note was not paid at maturity, and that it remained wholly unpaid and that the amount thereof was then due from the indorser to the bank. The indorser could have waived a defense of want of demand and notice, but it is plainly to be inferred that the note was protested, the statement that it was not paid at maturity and thereupon duly discounted, being evidently intended for “ duly protested.”

The order should be affirmed, with ten dollars costs and disbursements.

Hardin, P. J., and Adams, J., concurred; McLennan and; Spring, JJ., dissented.

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43 A.D. 6, 59 N.Y.S. 635, 1899 N.Y. App. Div. LEXIS 1915, Counsel Stack Legal Research, https://law.counselstack.com/opinion/first-national-bank-v-carleton-nyappdiv-1899.

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