Herman v. Bencke

8 N.Y. St. Rep. 345

• Court: City of New York Municipal Court
• Decided: February 25, 1887
• Status: Published

Opinion

Hyatt, J.

The plea contained in the answer is bad and indefinite; it alleges that the note was delivered “without-value,” and on “promises and considerations,” which have failed.

These promises may have constituted a good consideration, as mutual promises generally do. The answer, however, is a contradiction in its terms. It is a pleading,, divided against itself, a form not permitted by the rule of practice.

Although the note in question was transferred on the last day of grace, yet it was transferred before actual dishonor and so as to bar the equities sought to be interposed. Continental National Bank v. Townsend, 87 N. Y., 8, 10.

That the note in suit was presented and protested on the day when it was due, there is no dispute.

The maker or acceptor had the whole day to make payment, and although he should in the course of the day refuse payment, yet, if he subsequently, on the same day, made payment, it would be good, and the notice of dishonor would be of no avail. 2 Daniel, Neg. Inst., § 1235.

Whether or not the note was given to the plaintiffs for sufficient value, is entirely immaterial under the present answer.

The judgment is well founded and should be affirmed.

McAdam, Ch. J., concurs.