Reardon v. Olympic Theatre Corp.

236 A.D. 712

Opinion

Judgment and order reversed on the law and facts, with costs, and complaint dismissed, with costs. Per Curiam. The New York State rule applicable to this case as to the effect upon the rights of sureties, of payment of interest in advance, is quoted from Brandt on Suretyship in the dissenting opinion of Judge Werner in New York Insurance Co. v. Casey (178 N. Y. 381, at p. 388). With this statement all the judges sitting in that ease agreed. The facts and circumstances in the record we are considering — instead of rebutting the prima facie evidence of a contract extending time to pay principal through payment of interest nine days ahead of its due date — point rather to an understanding that extension of time was the purpose served. All concur, except Thompson, J., who dissents and votes for affirmance on the ground that the evidence presented a fair question of fact. [140 Misc. 889.]