Naum v. Naum Bros.

90 A.D.2d 960, 456 N.Y.S.2d 551, 1982 N.Y. App. Div. LEXIS 19237

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 1982
• Status: Published

Opinion

Judgment unanimously affirmed, with costs. Memorandum: The purpose of the waiver provision in the two promissory notes sued upon was to excuse presentment, and notice and protest of dishonor which otherwise would be necessary to charge secondary parties (Uniform Commercial Code, §§ 3-501, 3-504, 3-511, subd [6]; 1 Anderson, Uniform Commercial Code, Legal Forms [2d ed], § 2153). That provision was not intended to waive the specific requirement of a written demand as a condition precedent to acceleration of the notes for a default in the payments of interest. Nevertheless, we find that the plaintiff complied with the requirement of a written demand before the defendants made any tender or payments of the past-due interest, and hence the notes were accelerated. Defendants’ offer to pay the money due into court pending the determination of a related action was not a valid tender, since it was not an unconditional offer to pay (59 NY Jur, Tender, § 16), nor did it comply with CPLR 3219 which allows the beneficiary of the funds deposited into court to immediately withdraw the funds. (Appeal from judgment of Supreme Court, Monroe County, Pine, J. — promissory note.) Present — Dillon, P. J., Simons, Callahan, Boomer and Schnepp, JJ.