Vogt v. Fasola

Per Curiam : The suit is for a balance due on a bill of goods sold. The defense was a composition deed, executed by the plaintiffs with other creditors, whereby they agreed to accept twenty-five per cent of their claims, payment to he made within two months from the date of the instrument, which was “ the day of August, 1898.” The defendant pleaded tender of twenty-five per cent of the plaintiffs’ claim, and he paid such amount into court. Judgment was rendered for the plaintiffs for the amount tendered. The particular [468] day in August not being specified, the two months allowed by the agreement did not commence to run until the cud of that month. But the defendant proved no tender until two or three days before Thanksgiving day. This was not sufficient. The terms of a composition deed must be strictly complied with. (Penniman v. Elliott, 27 Barb. 315; Smythe v. Graydon, 29 How. 11; Warburg v. Wilcox, 2 Hilt. 118.) The defendant sought to relieve himself from his default by proof that he did not obtain the signature of his last creditor to the deed until January, 1899. It was unnecessary that he should obtain its execution by all his creditors to render the deed operative, as no such provision was contained in the instrument. (Renard v. Tuller, 4 Bosw. 107 ; Hall v. Merrill, 5 id. 266; Strickland v. Harger, 16 Hun, 465 ; Van Bokkelen v. Taylor, 62 N. Y. 105.) Hence this delay did not relieve the debtor from his obligation to pay within the stipulated time the creditors who signed in August. The judgment should be reversed and a new trial granted, costs to abide the event. All concurred. Judgment of the Municipal Oourt reversed and new trial granted, to be held on July 7, 1899, costs to abide the event.