Webster v. Bainbridge

Taucott, J.: We tliink the appeal in this case is properly brought from the order to strike out the answer of the defendant as frivolous, otherwise the defendants seem to be remediless, as when the answer is struck out as frivolous, it no longer appears upon the record, and the judgment is entered up in form, as for want of an answer. (Briggs et al. v. Bergen, 23 N. Y., 162; The J. Dixon Crucible Co. v. The New York Steel Works, 57 Barb., 447.) Consequently the motion to dismiss the appeal must be denied. As to the merits of the order striking out the defendants’ order as frivolous, the answer does not purport to set up any defense to the action, except that the plaintiffs, through their agent, accepted the promissory note of the defendants, whereby the time for the payment of the debt was extended. It seems that the acceptance of a-negotiable note of the debtor operates to suspend the cause of action until the maturity of the note, but if the note be not negotiable it is otherwise. (Geller v. Seixas, 4 Abb., 103; Hughes v. Wheeler, 8 Cow., 77; Raymond v. Merchant, 3 id., 147.) The answer in this case does not aver the note given for the extended credit to have been negotiable ; and the plaintiffs in their complaint allege that they are still the owners and holders of- the notes given on the extension, and that they are‘ready and willing to surrender the same to the defendant. (Cole v. Sachett, 1 Hill, 516; Hill v. Beebe, 13 N. Y., 556.) The result is, that the motion to dismiss the appeal must be denied, and the order appealed from affirmed, with ten dollars costs and disbursements. Present — Muxlin, P. J., Talcott and Smith, JJ. Motion to dismiss appeal denied; order appealed from affirmed, with ten dollars costs and disbursements in two cases.