New Rochelle Securities Co. v. International Thrift Society, Inc.

244 A.D. 824

Opinion

— On the court’s own motion, the decision of this court handed down on May 10, 1935 [ante, p. 810], is hereby amended to read as follows: Judgment in so far as it affects appellants reversed on the law, with costs, and complaint as to appellants dismissed, with costs. Action against the maker and accommodation indorsers on a negotiable demand note. It appears from the face of the instrument that its date was changed from September 9, 1930, to November 17, 1930. Therefore, plaintiff’s assignors were not holders in due course. (Neg. Inst. Law, § 91; Elias v. Whitney, 50 Misc. 326.) Such alteration, subsequent to appellants’ indorsements and without their knowledge or consent, relieved them from liability. (Neg. Inst. Law, §§ 205, 206; Golden v. Furniture Frame Factories, Inc., 235 App. Div. 704; Manufacturers Trust Co. v. Steinhardt, 265 N. Y. 145.) The note was not presented for payment or protested until after the lapse of one year. Under the circumstances here, this exceeds a reasonable time and appellants were discharged by respondent’s delay. (American Trust Co. v. Manley, 195 App. Div. 811.) Lazansky, P. J., Hagarty, Davis and Johnston, JJ., concur; Tompkins, J., concurs on the ground that the change was a material one and that payment of the note was not demanded within a reasonable time.