Rolston v. Central Park, North & East River Railroad

20 Misc. 656, 46 N.Y.S. 383

• Court: City of New York Municipal Court
• Decided: July 15, 1897
• Status: Published

Opinion

Van Wyck, Ch. J.

The plaintiffs, while the bona fide owners of one of defendant’s' negotiable $1,000 bonds, with all interest coupons, not then due, attached, lost the same and thereafter and after two of such coupons of $35 each became due they duly tendered to defendant a bond of indemnity to hold it harmless against the claim of anybody else, and duly demanded payment of these two due and unpaid coupons, which was refused, and -thereupon brought this action to- recover the sum of $70. At trial copies of these two coupons, the bond and the deed of trust or mortgage to secure payment of the same, were marked in evidence ’ by consent, and as there was no disputed question' of fact raised by the proof, the presiding justice directed a verdict for plaintiff for the amount claimed and interest thereon, and fixed the amount, of the indemnity bond to be given by plaintiffs, within ten days, to defendant, at $250. The coupon first due reads: “ $35. June 1, 1895, $35. The Central Park, North & East River Railroad Co. will pay thirty-five-dollars to béarer at the City of New York for six months’ interest on Bond No. 994. L. T. Griffiths, Treasurer.” The other coupon was similar, except the date of pay-

ment was December 1, 1895. The mortgage provided that the semi-annual interest on the bonds was to be paid “ on the presentation and delivery of the coupons or interest warrants thereto attached.” The appellant contends that presentation of the coupons was a condition precedent to the payment of the interest and that the coupons are not negotiable instruments for the payment of money only. There is an implied agreement in all negotiable instruments that they must be presented and delivered as a condition of payment, and if these coupons were in plaintiffs’ possession, they would be called upon to surrender them upon payment, but the bond with these coupons attached has been lost, and the bond is not due, but these coupons are. The plaintiffs’ action is upon lost negotiable paper under section 1917 of the Code, and they, before suit, tendered the indemnity required by that section and at trial had the justice fix the amount thereof. Interest coupons to railroad bonds, payable to bearer at a specified time and place, are negotiable promises for the payment of money and are subject to the same rules ás other negotiable instruments. Evertson v. Nat. Bk. of Newport, 66 N. Y. 14. The provision in the mortgage, securing the payment of the bonds, that the coupons will be paid only upon their presentation and surrender does not change their negotiable character, and such provision would not, even if expressed in the coupon itself. Frank v. Wessels, 64 N. Y. 155. In that case the lost instrument sued upon read: “ New York, February 4, 1871. Deceived from Straut Bros, for account of Mr. W. Feist, carpenter, of Greytown, Hicaragua, $2,496.26, paper currency, which I promise to pay to said W. Feist, or to his order, on return of this receipt, with 7# per annum interest $2,496/26, paper currency. G.'Wessels,” and the Court of Appeals there ruled that this was a lost negotiable instrument and that under the statute allowing action upon such instruments, the plaintiff was required to give an indemnity bond and so ordered, and further ruled that the words “ on return of this receipt ” did not make it payable upon a contingency, or constitute a condition precedent to any payment. The plaintiffs were entitled to a verdict for only $70, the amount of the coupons, but not to interest thereon, and the judgment is reduced by $3.81, the amount of interest, and as so reduced affirmed, with costs.

McCabthy and Scotchman, JJ., concur.

Judgment reduced and as reduced affirmed, with costs.