True v. Brainard

New York Supreme Court

True v. Brainard

130 Misc. 191, 223 N.Y.S. 672, 1927 N.Y. Misc. LEXIS 1009

DecidedJune 6, 1927

StatusPublished

This text of 130 Misc. 191 (True v. Brainard) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

True v. Brainard, 130 Misc. 191, 223 N.Y.S. 672, 1927 N.Y. Misc. LEXIS 1009 (N.Y. Super. Ct. 1927).

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Opinion

Dowling, William F., J.

On March 1, 1913, the defendant made and delivered to plaintiff’s testator the following promissory note:

“ 5,527.07

Syracuse, N. Y., March 1, 1913.

“ For value received I promise to pay to Ransom B. True the sum of five thousand five hundred and twenty-seven & 07 /100 dollars with interest at five per cent (5%) payable in monthly installments of one hundred dollars ($100.00) each on the last day of each month.

„ QEa R BRAINARD.”

Nothing was paid upon the note, either of principal or interest. Action was begun to collect the note April 13, 1922. Issue was not joined until July 27, 1925. Upon the trial, defendant was permitted, with consent of the plaintiff, to amend his answer so as to plead the Statute of Limitations against all installments of the note, both of principal and interest, falling due prior to April 13, 1916. I think the six-year limitation is applicable to the first thirty-seven installments of principal and interest on the above note, and hold that recovery thereof is barred. Action could and should have been brought on each installment as it matured. The statute commenced to run as each installment fell due. Nothing occurred to arrest the running of the statute. (Civ. Prae. Act, [192]*192§ 48, subd. 1; Erickson v. Macy, 231 N. Y. 86, 91; Ga Nun v. Palmer, 202 id. 483, 488; Burnham v. Brown, 23 Maine, 400; Bush v. Stowell, 71 Penn. St. 208, 211; Neg. Inst. Law, § 145; Quackenbush v. Mapes, No. 1, 123 App. Div. 242, 249; Helwick Co. v. Hess, 9 Ohio App. 200; 5 Uniform Laws Annotated, 353; 2 Daniel Neg. Inst. [6th ed.] § 1213, p. 1360; Tucker v. Randall, 2 Mass. 283; Cooley v. Rose, 3 id. 221.)

The plaintiff is entitled to recover $1,827.07, being the eighteen and a fraction installments last maturing on the note, with interest on each installment at five per cent to the date of maturity of such installment, and thereafter at six per cent. (Purdy v. Philips, 11 N. Y. 406, 407.) I think section 378 of the General Business Law is not applicable here.

Judgment for the plaintiff accordingly.

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Dowling, William F., J.

On March 1, 1913, the defendant made and delivered to plaintiff’s testator the following promissory note:

“ 5,527.07

Syracuse, N. Y., March 1, 1913.

“ For value received I promise to pay to Ransom B. True the sum of five thousand five hundred and twenty-seven & 07 /100 dollars with interest at five per cent (5%) payable in monthly installments of one hundred dollars ($100.00) each on the last day of each month.

„ QEa R BRAINARD.”

Nothing was paid upon the note, either of principal or interest. Action was begun to collect the note April 13, 1922. Issue was not joined until July 27, 1925. Upon the trial, defendant was permitted, with consent of the plaintiff, to amend his answer so as to plead the Statute of Limitations against all installments of the note, both of principal and interest, falling due prior to April 13, 1916. I think the six-year limitation is applicable to the first thirty-seven installments of principal and interest on the above note, and hold that recovery thereof is barred. Action could and should have been brought on each installment as it matured. The statute commenced to run as each installment fell due. Nothing occurred to arrest the running of the statute. (Civ. Prae. Act, [192]*192§ 48, subd. 1; Erickson v. Macy, 231 N. Y. 86, 91; Ga Nun v. Palmer, 202 id. 483, 488; Burnham v. Brown, 23 Maine, 400; Bush v. Stowell, 71 Penn. St. 208, 211; Neg. Inst. Law, § 145; Quackenbush v. Mapes, No. 1, 123 App. Div. 242, 249; Helwick Co. v. Hess, 9 Ohio App. 200; 5 Uniform Laws Annotated, 353; 2 Daniel Neg. Inst. [6th ed.] § 1213, p. 1360; Tucker v. Randall, 2 Mass. 283; Cooley v. Rose, 3 id. 221.)

The plaintiff is entitled to recover $1,827.07, being the eighteen and a fraction installments last maturing on the note, with interest on each installment at five per cent to the date of maturity of such installment, and thereafter at six per cent. (Purdy v. Philips, 11 N. Y. 406, 407.) I think section 378 of the General Business Law is not applicable here.

Judgment for the plaintiff accordingly.

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130 Misc. 191, 223 N.Y.S. 672, 1927 N.Y. Misc. LEXIS 1009, Counsel Stack Legal Research, https://law.counselstack.com/opinion/true-v-brainard-nysupct-1927.

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