Popper v. Bingham

City of New York Municipal Court

Popper v. Bingham

20 Misc. 173, 45 N.Y.S. 820

DecidedApril 15, 1897

StatusPublished

This text of 20 Misc. 173 (Popper v. Bingham) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Popper v. Bingham, 20 Misc. 173, 45 N.Y.S. 820 (N.Y. Super. Ct. 1897).

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Opinion

Van Wyck, Ch. J.

The complaint is upon a promissory note of two hundred and fifty-seven (257) dollars, made by defendants. The answer specially admits every allegation of complaint except nonpayment of the note and affirmatively alleges "that plaintiffs, through their attorneys duly authorized, after commencement of action, made a proposition in writing to settle for fifty (50) dollars cash and balance to be paid in monthly installments of fifty (50) dollars each, which was accepted by defendants through their attorneys in writing.

Appellants contend that this is not an allegation of an agreement between the parties to extend the time of payment of a debt admittedly due and owing, but of a stipulation in writing of the attorneys of record in the action and binding on the parties thereto, although without consideration, but concedes that such an agreement made by the parties themselves before action would have no binding force, unless a consideration therefor was alleged.

The allegation is not. of a stipulation by attorneys but of an agreement between the parties by their attorneys. He who acts through another acts himself.

An agreement by a creditor to extend time of payment of debt admittedly due, must be supported by a consideration. This rule is not changed because such agreement was made by the creditor after service of summons on the debtor who admits that the debt is [174]*174due and owing. Of course, it would be otherwise if the debtor disputed the claim' or contended that it was not due.

Order affirmed, with costs.

FiTzsiMONS' and McCarthy, JJ., concur.

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Van Wyck, Ch. J.

The complaint is upon a promissory note of two hundred and fifty-seven (257) dollars, made by defendants. The answer specially admits every allegation of complaint except nonpayment of the note and affirmatively alleges "that plaintiffs, through their attorneys duly authorized, after commencement of action, made a proposition in writing to settle for fifty (50) dollars cash and balance to be paid in monthly installments of fifty (50) dollars each, which was accepted by defendants through their attorneys in writing.

Appellants contend that this is not an allegation of an agreement between the parties to extend the time of payment of a debt admittedly due and owing, but of a stipulation in writing of the attorneys of record in the action and binding on the parties thereto, although without consideration, but concedes that such an agreement made by the parties themselves before action would have no binding force, unless a consideration therefor was alleged.

The allegation is not. of a stipulation by attorneys but of an agreement between the parties by their attorneys. He who acts through another acts himself.

An agreement by a creditor to extend time of payment of debt admittedly due, must be supported by a consideration. This rule is not changed because such agreement was made by the creditor after service of summons on the debtor who admits that the debt is [174]*174due and owing. Of course, it would be otherwise if the debtor disputed the claim' or contended that it was not due.

Order affirmed, with costs.

FiTzsiMONS' and McCarthy, JJ., concur.

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Bluebook (online)

20 Misc. 173, 45 N.Y.S. 820, Counsel Stack Legal Research, https://law.counselstack.com/opinion/popper-v-bingham-nynyccityct-1897.