Trout v. Empire Shipbuilding Co.

Appellate Division of the Supreme Court of New York

Trout v. Empire Shipbuilding Co.

171 A.D. 883, 160 N.Y.S. 1148

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 15, 1915

StatusPublished

This text of 171 A.D. 883 (Trout v. Empire Shipbuilding Co.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Trout v. Empire Shipbuilding Co., 171 A.D. 883, 160 N.Y.S. 1148 (N.Y. Ct. App. 1915).

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Opinion

Per Curiam:

In our opinion the learned trial court erred in holding that the letter given by plaintiff’s testator, Henry Gr. Trout, to the defendant Malone on May 16, 1908, had the same force and effect as though inserted in the note itself, and that it served to postpone the date of maturity of the note to July 1, 1910. The Empire Shipbuilding Company, the maker of the note, was not a party to that letter, and nothing therein contained would prevent the holder calling upon the maker for payment at any time prior to July 1, 1910. The letter was written at the instance of the indorser, Malone, to effect an extension,, so far as the indorser was concerned, of the time when the note should be finally paid. We think that under the circumstances under which this letter was written to and received by the indorser it constituted a constructive waiver of presentment, notice of dishonor and demand of payment of the note as a matter of law, and that the indorser is liable thereon. (Sheldon v. Horton, 43 N. Y. 93.) The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.

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Per Curiam:

In our opinion the learned trial court erred in holding that the letter given by plaintiff’s testator, Henry Gr. Trout, to the defendant Malone on May 16, 1908, had the same force and effect as though inserted in the note itself, and that it served to postpone the date of maturity of the note to July 1, 1910. The Empire Shipbuilding Company, the maker of the note, was not a party to that letter, and nothing therein contained would prevent the holder calling upon the maker for payment at any time prior to July 1, 1910. The letter was written at the instance of the indorser, Malone, to effect an extension,, so far as the indorser was concerned, of the time when the note should be finally paid. We think that under the circumstances under which this letter was written to and received by the indorser it constituted a constructive waiver of presentment, notice of dishonor and demand of payment of the note as a matter of law, and that the indorser is liable thereon. (Sheldon v. Horton, 43 N. Y. 93.) The judgment and order appealed from should be reversed and a new trial granted, with costs to the appellant to abide the event. All concurred. Judgment and order reversed and new trial granted, with costs to appellant to abide event.

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Bluebook (online)

171 A.D. 883, 160 N.Y.S. 1148, Counsel Stack Legal Research, https://law.counselstack.com/opinion/trout-v-empire-shipbuilding-co-nyappdiv-1915.

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