O'Connor v. Brandt

12 A.D. 596

Opinion

Herrick, J.

The judgment should be affirmed. At the time of the assignment by the firm of Erastus Ross & Sons, said firm was indebted to the defendant Brandt to an amount largely in excess of the note. Such indebtedness was then and there immediately due, and, notwithstanding the indebtedness of the defendant Brandt upon such note to the' insolvent firm would not mature until some time thereafter, he had an equitable right to have so much of his account' with the insolvent firm set off against said note as would extinguish it. (Rothschild v. Mack, 115 N. Y. 1; Richards v. La Tourette, 119 id. 54; Hughitt v. Hayes, 136 id, 163; Scott v. Armstrong, 146 U. S. 499.)

In the-case of Clute v. Warner (8 App. Div. 40) we held, in the' case of - a note which was not due at the time of the insolvency of the bank, arid the payment of which, therefore, could not be enforced before maturity, that the plaintiff for whose accommodation the note was made, and who had it discounted, had the right to waive the additional time and elect to have it become due at that time, and to make payment thereof by applying the amount of his money in the possession of the bank to such payment. I can' see no difference in principle between" permitting one for whose accommodation a note, lias been given, and who has procured it to be discounted for his benefit, to waive the time and elect to have it become due' at once, and permitting the indorser of a note, who has procured it to be discounted for his benefit, the maker being insolvent, and the indorser having no security for the payment thereof, to waive the additional time and elect to have his liability become fixed at once, and make satisfaction and payment, thereof by applying the amount of his money on deposit with the insolvent firm to such payment and satisfaction.

The judgment should be affirmed, with costs.

All concurred, except Landos, J., not sitting.

Judgment affirmed, with costs.