Harral v. Sternberger

Van Wyck, Oh. J. The appellant was sued as the payee indorser of a promissory note and the complaint alleged due demand' of payment, refusal and notice thereof to this defendant-appellant. [275] At trial plaintiff was allowed; against appellant’s objection, to prove an oral promise made after maturity by appellant to pay this-note, and appellant himself, although denying that he had so promised, stated that at the time of the conversation which, plaintiff contended made the promise, he was informed by plaintiff that the note had not been presented for payment, nor had it been protested. The appellant at close of plaintiff’s case and also after he, defendant, had rested, moved to dismiss on the grounds that there had been no presentment and demand and no notice of presentment and nonpayment or notice of protest given to appellant. This motion was properly denied and the case was submitted to the jury to determine whether appellant had promised to pay the note after maturity with knowledge that the note had not been presented for payment at maturity and was then dishonored. The jury, disbelieving the appellant, found for plaintiff, and their verdict should not be disturbed. The rule is that as against an indorser plaintiff must prove demand and notice, but by proving the indorser’s promise to pay after maturity this proof is prima facie supplied, and if the indorser rebuts this proof by showing laches in respect to demand and notice, then the plaintiff makes sufficient rejoinder by showing that the indorser had knowledge of the laches when he promised to pay. The proofs and the jury’s findings bring this case within that rule. Clark v. Tryon, 4 Misc. Rep. 63; 53 N. Y. St. Repr. 123. The judgment and order must be affirmed, with costs. Conlan and O’Dwyer, JJ., concur. Judgment and order affirmed, with costs.