Smith v. Ryan
The Superior Court of New York City
Appeal from a judgment. The action was to recover a balance of an account for goods sold, &c., for which the defendant was indebted April 10, 1868. The defense was the statute of limitations. On April 14, 1868, the defendant endorsed and delivered to the plaintiffs two promissory notes of five hundred dollars each, made by Betts & Gay, dated April 6, 1868, and payable in two and five months, with interest.
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Appeal from a judgment. The action was to recover a balance of an account for goods sold, &c., for which the defendant was indebted April 10, 1868. The defense was the statute of limitations. On April 14, 1868, the defendant endorsed and delivered to the plaintiffs two promissory notes of five hundred dollars each, made by Betts & Gay, dated April 6, 1868, and payable in two and five months, with interest. The notes were secured by a chattel mortgage made by the makers to the defendant, which he assigned to the plaintiffs. Upon the receipt of the notes from the defendanr they were entered in…
1Opinion of the Court
By the Court.—Monell, Ch. J.
The question in this case is, whether the statute began to run from the time the notes were transferred, or from the time of their payment. The referee has found the later period, regarding the payment of the notes as a payment by the defendant, so as to imply a new promise at that time.
It does not seem to me to be of any importance, so far as it affects the implied new promise, whether the plaintiffs received the notes in or as payment of the antecedent indebtedness, or merely as security for its payment. The transfer of a security by the debtor to be applied upon…
2Cases cited5 opinions
- Harper v. . FairleyNew York Court of Appeals · 1873
- Pickett v. . LeonardNew York Court of Appeals · 1866
- Read v. HurdNew York Supreme Court · 1831
- Creuse v. DefiganiereThe Superior Court of New York City · 1863
- Miller v. TalcottNew York Supreme Court · 1866