Taylor v. Allen

36 Barb. 294, 1862 N.Y. App. Div. LEXIS 26

• Court: New York Supreme Court
• Decided: February 3, 1862
• Status: Published

Opinion

By the Gourt,

Leonard, J.

The receipt of a bill or note having time to run, from the party primarily liable on a bill or note then overdue, does not operate to discharge an indorser on the bill or note so overdue, unless there is an agreement express or implied that the new bill or draft is in payment of the former, or extending the time of payment in favor of some party who is liable thereon prior to such indorser.

Where it has been expressly agreed that the new note was received as collateral security to the note overdue, the right of immediate action on the note so overdue is not suspended, and the indorser or surety is not discharged. (Myers v. Welles, 5 Hill, 463. Fellows v. Prentiss, 3 Denio, 512. Hart v. Hudson, 6 Duer, 294. Huffman v. Hulbert, 13 Wend. 375. McLean v. Lafayette Bank, 3 McLean, 589.)

[New York General Term, February 3, 1862.

Ingraham, Leonard and Olerke, Justices.]

In the present case there was no express agreement to extend the time of payment on the note overdue.

There is some evidence that the new draft was taken by the plaintiff as collateral to the former note. If this was so, there was nothing to prevent the plaintiff from enforcing payment of the protested note. The question should have been submitted to the jury whether there was an agreement to extend the time of payment on the protested note, or whether the new was given and received as collateral to the old security.

There must be a new trial, with costs to abide the event.