Jamaica National Bank v. Le Reiz Construction Corp.

283 A.D. 825, 128 N.Y.S.2d 809, 1954 N.Y. App. Div. LEXIS 5436

Opinion

In an action against the maker, an indorser, and a guarantor of a promissory note, judgment, insofar as it grants recovery in favor of the plaintiff against the indorser, reversed on the law and the facts, and a new trial granted, with costs to abide the event. The judgment appealed from is contrary to the weight of the evidence. There was testimony by the indorser, uncontradicted by witnesses who were apparently available, that, during the period he resided outside the State of New York, he had been frequently available within the State for service of process to plaintiff’s knowledge. In the circumstances, the proof of his nonresidence alone is insufficient to controvert his testimony as to his presence in the State, or to toll the Statute of Limitations. (Turner v. American Metal Go., 268 App. Div. 239, 267, appeal dismissed, 295 N. Y. 822.) Neither was there sufficient proof concerning the alleged payments on account to show whether, with respect to said statute, any of said payments preserved the obligation as against him. (Brooklyn Bank v. Barnaby, 197 N. Y. 210.) Nolan, P. J., MaeCrate, Schmidt, Beldoek and Murphy, JJ., concur.