Wheeler v. Jones

49 N.Y. Sup. Ct. 374

• Court: New York Supreme Court
• Decided: November 15, 1886
• Status: Published

Opinion

Landon, J.:

Cary v. White (52 N. Y., 139) is to the effect that when there is no agreement to extend the time of the payment of the' original debt, or no substituted agreement made respecting the debt, the mere taking of a mortgage payable at a future time as collateral security for the original debt, does not operate --to extend the time for its payment. Durkee v. National Bank of Fort Edward (36 Hun, 565), is to the effect, that when the original debt is past due, and the debtor at the request of his-creditor, gives him a mortgage to secure its payment, which mortgage appoints a future day of payment, and provides that if payment- be then made the mortgage shall be void, then the creditor by accepting the mortgage, accepts its terms.

In the former case the collateral mortgage does not in terms refer to the original debt, nor fix a new day for its payment; in the latter case the original debt is by express terms in the mortgage made payable'' at a future day. In the case at bar the assignment does not by its terms extend the time of payment of the original debt. Certain accounts against third parties, due in the future, were assigned to the plaintiffs as security, upon the agreement of the plaintiffs that as these accounts became due, they should collect the same and apply ’the avails in payment of the indebtedness, The plaintiffs now had the original unchanged promise of the defendant and the assigned claims against third parties, but they did not fix a new day of payment of the old debt. They fixed the time when they would apply the proceeds of the assigned accounts, namely, when they should collect them; but they did not agree to postpone collecting the original debt until they slrould collect the assigned accounts.

Learned, P. J., and Bockes, J., concurred.

Judgment affirmed, with costs.