Brookman v. Metcalf
The Superior Court of New York City
On the 8th of November, 1855, the defendant made two promissory notes, each for five hundred dollars, payable resjsectively in six and twelve months after date, to his own order. The complaint alleged that, through successive indorsements, the notes were transferred to the plaintiffs; that they were not paid; and that after both had matured, and on or about the 11th of February, 1857, the plaintiffs commenced an action upon the six-months note.
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On the 8th of November, 1855, the defendant made two promissory notes, each for five hundred dollars, payable resjsectively in six and twelve months after date, to his own order. The complaint alleged that, through successive indorsements, the notes were transferred to the plaintiffs; that they were not paid; and that after both had matured, and on or about the 11th of February, 1857, the plaintiffs commenced an action upon the six-months note. That the defendant put in answer to the complaint in such action; that the issue was tried by a referee, who dismissed the complaint with costs. That…
1Opinion of the Court
By the court, Monell, J.
The promise of the defendant,that if the plaintiffs would suspend bringing an action upon the second note, he would abide by the decision of the first action, if it amounted to a promise to pay, was not sufficient to take the note out of the operation of the statute of limitations. Such promise is now required to be in writing (Code, § 110), and signed by the party to be charged.
The offer, however, to abide by the decision of the action upon the first note, was made and accepted before the statute of limitations attached to the second note. The consideration of the two…
2Cases cited4 opinions
- Gaylord v. Van LoanNew York Supreme Court · 1836
- Brown, Russell & Russell v. SpragueNew York Supreme Court · 1848
- Ferguson v. HamiltonNew York Supreme Court · 1862
- Des Arts v. LeggettThe Superior Court of New York City · 1855