Stevenson v. Dunn

3 Misc. 554, 23 N.Y.S. 322, 52 N.Y. St. Rep. 523

• Court: City of New York Municipal Court
• Decided: May 15, 1893
• Status: Published

Opinion

Fitzsimons, J.

The plaintiff loaned money to defendants, who gave their note therefor. Plaintiff sued upon the original debt. Defendants answered admitting the loan, and stated the giving of the note. A motion was made to declare the defense pleaded a sham, which was granted. The rest of the answer not declared sham is clearly frivolous. That part pleading the giving of the note is without legal merit. The taking of a debtor’s note does not extinguish the original debt; it is a promise to pay put in writing, and only extends the time of payment of the debt itself until the note is due. If it is not then paid, the creditor may sue upon the original demand, and bring the note into court to be given up on the trial. Jagger Iron Co. v. Walker, 76 N. Y. 524. The answer served does not show that the note, when the action was commenced, was not due.

We must assume that it was, and, therefore, the order appealed from must be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.

Order affirmed.