Meyer v. Huneke , 65 Barb. 304 ( 1873 )

By the Court, Ingbaham, P. J.

When this cause was before the General Term after the first trial, the court decided that the note might be surrendered and the plaintiff might recover on the original agreement. The effect of that decision was to hold that the alteration of the note, although it made the note void, did not operate to destroy the original contract, which conld be enforced without using the note as evidence of the same. Undoubtedly if the note had been the note of a third ■person, or had other names on it than the original parties to the contract, it could not be surrendered, under such circumstances, because such surrender would not place them in the samé condition they were in before the note was given. In this case, however, no such result follows. The note never was of any value beyond the original contract. Its surrender at any time was of no moment, in changing the rights and liabilities of the parties. These liabilities were unaffected thereby. The destruction of the note, in any way, whether voluntary or involuntary, would be perfect. The alteration of the note may or may not have been a criminal act, but that would have no effect on the original contract. A case similar in its relations is where a noté is given for a preexisting debt and the holder takes usurious interest for the extension of the time of payment. Such note, though void for the usury, does not destroy the original cause of action. (Farmers and Mechanics’ Bank of Genesee v. Joslyn, 37 N. Y. 353. Winsted Banlc v. Webb, 39 id. 325.)

[First Department, General Term, at New York, May 5, 1873.

Ingraham, and Davis, Justices.]

There can be no doubt of the right of the plaintiff to recover on the original security, if the note had been surrendered without any alteration. That right is not taken away by the supposed alteration of the note.

Judgment reversed.