Columbus Industrial Bank v. Verrilli

Action to recover a balance due on a promissory note made by respondent and the three defendants. Plaintiff had judgment against two of the defendants, the action was withdrawn as to a third, and a jury verdict of no liability was had by the respondent. Plaintiff appealed from so much of the judgment as was entered in favor of the respondent and from the order denying its motion to set aside the verdict and for a new trial. Judgment of the County Court of Westchester County, in so far as appealed from, reversed on the law and the facts, with costs, and judgment directed in favor of the plaintiff against respondent, with costs. Upon the trial all defenses interposed by the respondent were abandoned except the defense based on the Statute of Limitations. Only that defense is argued on this appeal. The efficacy of such defense depended upon whether or not twelve postdated cheeks were given to the plaintiff under circumstances that bound the respondent. The undenied testimony of the plaintiff’s witness Del Veechio on this phase, as well as the testimony of respondent, established that the payment by these checks was made at the request of the respondent under circumstances that bound him. (Pickett v. Leonard, 34 N. Y. 175, 176.) The checks were postdated. The Statute of Limitations runs not from the date of delivery of the checks but from the date payments were due and made thereon. (Mohawk Bank v. Broderick & Powell, 13 Wend. 133.) The ninth cheek was paid on October 13, 1933, hence the action on the note in suit would not be barred as against the respondent until October, 1939. This action was begun in September, 1939. Therefore, the defense of the Statute of Limitations has no efficacy. The motion for a directed verdict against respondent should have been granted. Appeal from order denying plaintiff’s motion to set aside the verdict and for a new trial dismissed, without costs. Lazansky, P. J., Hagarty, Carswell, Johnston and Adel, JJ., concur.