In re Itzkowitz

New York Supreme Court

In re Itzkowitz

177 Misc. 269, 30 N.Y.S.2d 336, 1941 N.Y. Misc. LEXIS 2267

CourtNew York Supreme Court

DecidedSeptember 26, 1941

StatusPublished

Cited by1 cases

This text of 177 Misc. 269 (In re Itzkowitz) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

In re Itzkowitz, 177 Misc. 269, 30 N.Y.S.2d 336, 1941 N.Y. Misc. LEXIS 2267 (N.Y. Super. Ct. 1941).

Pincite

Opinion

Pécora, J.

This is an application for an order pursuant to the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940 for a stay of the enforcement of the applicant’s liability as a comaker upon a promissory note signed by him and another person who is now in the military service. It is undisputed that the moving party did not receive any of the proceeds of the loan. Subdivision 1 of section 103 of the said Soldiers’ and Sailors’ Civil Relief Act (54 U. S. Stat. at Large, p. 1178; U. S. Code, tit. 50, Appendix, § 513, subd. 1) is entitled “ Protection of Persons Secondarily Liable.” It provides: “ Whenever pursuant to any provisions of this Act the enforcement of any obligation or liability, [270]*270the prosecution of any suit or proceeding, the entry or enforcement of any order, writ, judgment, or decree, or the performance of any other act, may be stayed, postponed, or suspended, such-stay, postponement, or suspension may, in the discretion of the court, likewise be granted to sureties, guarantors, indorsers, and others subject to the obligation or liability, the performance or enforcement of which is stayed, postponed, or suspended.”

The direct question presented is whether a comaker on a note falls within the purview of this section. As a maker of the note, the applicant is primarily liable. He can be proceeded against by the payee, either severally or jointly with his comaker. I do not believe that the language of the section, “ and others subject to the obligation or liability,” refers to primary obligors. Read in connection with the words preceding it, which refer to sureties, guarantors and indorsers, the rule of construction of ejusdem generis would require an interpretation that this phrase referred to similar secondary obligations. The title of the section also leads to that conclusion.

Perhaps one who has acted as an accommodation maker should not be placed in any less advantageous position than a surety or guarantor. But any such argument must be addressed to Congress. This court may only construe the legislation as it has been enacted. The motion is denied.

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Pécora, J.

This is an application for an order pursuant to the provisions of the Soldiers’ and Sailors’ Civil Relief Act of 1940 for a stay of the enforcement of the applicant’s liability as a comaker upon a promissory note signed by him and another person who is now in the military service. It is undisputed that the moving party did not receive any of the proceeds of the loan. Subdivision 1 of section 103 of the said Soldiers’ and Sailors’ Civil Relief Act (54 U. S. Stat. at Large, p. 1178; U. S. Code, tit. 50, Appendix, § 513, subd. 1) is entitled “ Protection of Persons Secondarily Liable.” It provides: “ Whenever pursuant to any provisions of this Act the enforcement of any obligation or liability, [270]*270the prosecution of any suit or proceeding, the entry or enforcement of any order, writ, judgment, or decree, or the performance of any other act, may be stayed, postponed, or suspended, such-stay, postponement, or suspension may, in the discretion of the court, likewise be granted to sureties, guarantors, indorsers, and others subject to the obligation or liability, the performance or enforcement of which is stayed, postponed, or suspended.”

The direct question presented is whether a comaker on a note falls within the purview of this section. As a maker of the note, the applicant is primarily liable. He can be proceeded against by the payee, either severally or jointly with his comaker. I do not believe that the language of the section, “ and others subject to the obligation or liability,” refers to primary obligors. Read in connection with the words preceding it, which refer to sureties, guarantors and indorsers, the rule of construction of ejusdem generis would require an interpretation that this phrase referred to similar secondary obligations. The title of the section also leads to that conclusion.

Perhaps one who has acted as an accommodation maker should not be placed in any less advantageous position than a surety or guarantor. But any such argument must be addressed to Congress. This court may only construe the legislation as it has been enacted. The motion is denied.

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Bluebook (online)

177 Misc. 269, 30 N.Y.S.2d 336, 1941 N.Y. Misc. LEXIS 2267, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-itzkowitz-nysupct-1941.

Opinion

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