Emerson v. Sheffer , 98 N.Y.S. 1057 ( 1906 )

Cochrane, J.:

The defense urged against this note is that it lacks consideration in that the original indebtedness represented..by the draft of Wilson, Sheffer & .Coonley held by the plaintiffs was not extinguished or paid by said note and that there was no agreement to extend, the time of payment of said draft. The note was concededly given not in payment of the draft but as security therefor, and if the defendant is right in his contention that the time of payment of said draft was not extended, no recovery can be had on this note. Plaintiffs certainly did not agree to extend the time of payment of the original indebtedness for one year, the time which had to elapse before the maturity of the note. And no presumption of such agreement can be inferred merely from the fact of the acceptance of said note as security for the pre-existing indebtedness. But the plaintiffs, as an inducement to the firm of Wilson, Sheffer & Coonley to secure their indebtedness, told them that they w.ere “not particular about an immediate settlement,” and on the strength of this statement the note in question was delivered. 1 think this amounted to a promise on the part of the plaintiffs that they would forbear action on the draft and justifies the finding of the trial court that .an agreement of forbearance was made by them in consideration of the note in question. By such promise the plaintiffs placed it out of their power to proceed immediately on the draft. Yo specific time of forbearance was.mentioned. But it became the duty of the plaintiffs to wait a reasonable time before seeking enforcement of the original indebtedness.' Any time, however short, was a sufficient consideration for the note. (Milius v. Kauffmann, 104 App. Div. 442; Cary v. White, 52 N. Y. 142.) In the case last cited it.was said : “ If there was- an extension of time for a single day by a valid agreement, as a consideration of the- mortgage, there was a valuable consideration within the rule.”

It is further urged by the defendant that even if the plaintiffs agreed to grant forbearance on their original claim against the, firm of Wilson,, Sheffer &, Coonley, such agreement.- was useless and of no value because said firm was in bankruptcy and that plaintiffs’ right to proceed on such claim was stayed under section 11 of' the Bankruptcy Law (30 U. S. Stat. at Large, 549), which, provides that an action on such a claim may be stayed for twelve months after, the date of the adjudication in bankruptcy, or if within that time the bankrupt applies for a discharge, then until the question of such discharge is determined. Yo facts, appear in, this record which show that the plaintiffs were within the prohibition of that statute;- It does not- appear when Wilson, Slieffer <& Coonley were adjudicated bankrupts. If . such adjudication had been made more than twelve months before" the execution of the note in question and said bankrupts had not within that time applied -for their discharge, or if, having applied for the same, such discharge had been refused, the prohibitory provision of the Federal statute above referred-to would not affect the plaintiffs. It was incumbent on the defendant to show affirmatively "tjie existence of such facts as would preclude the plaintiffs from enforcing their obligation against the bankrupt firm.

The judgment should be affirmed, with.costs.

Chester, J., concurred ; Smith, J., concurred in result; Parker, . P. J., not voting Kellogg, J., not sitting.- s

J udgment affirmed, with costs.