Levin v. Noble

Order modified on the law by striking therefrom the second ordering paragraph and as modified affirmed, without costs of this appeal to either party. Memorandum: We do not regard defendant’s offer to his creditors of a composition based upon a 12%% cash payment of the indebtedness as sufficient to toll the statute as provided in section 59 of the Civil Practice Act. (Connecticut Trust & S. D. Co. v. Wead, 172 N. Y. 497; Downey v. Palmer, 114 F. 2d 116; Williston on Contracts [Rev. ed.], § 181; 1 Wood on Limitations, § 78, p. 418.) We think that plaintiff under proper pleading may be entitled to recover the amount of the compromise. All concur. (The order denies plaintiff’s motion for summary judgment and grants defendant’s motion to dismiss the complaint in an action to recover the amount alleged to be due on two promissory notes.) Present — Taylor, P. J., Harris, McCurn, Larkin and Love, JJ.