Hardon v. Dixon ( 1902 )

LAUGHLIN, J.

The complaint sets forth three causes of action on promissory notes against the defendants, as makers. The defendants pleaded, among other things, the statute of limitations. The plaintiffs were nonsuited at the close of their evidence. The only question presented on the appeal is whether the statute of limitations has run against the note on which the third cause of action is based. This note, omitting the signatures of the makers, is as follows :

“$-. N. Y., Feb. 16tb, 1893.

“On demand after date we promise to pay to tbe order of Ongley Electric Co. twelve thousand five hundred dollars at 1 Broadway, New York, with interest at 3% per annum.”

The action was commenced on the 16th day of February, 1899. The precise question is whether the statute of limitations commenced to run on the date of this note. If so, the action is barred (Aultman & Taylor Co. v. Syrne, 163 N. Y. 54, 57 N. E. 168); otherwise not. We think that the statute of limitations had not run against this note, and that the judgment must be reversed, for two reasons.

1. By the express terms of the note, it did not become due or payable until the day after its date. Some force and effect should be given to the words “after date.” In the case of Crim v. Starkweather, 88 N. Y. 339, 42 Am. Rep. 250, the court of appeals say that a note payable “on demand after date, with interest at the rate of ten per centum per annum after maturity,” does not become due until the day following its date. That was an action against an in-dorser, and the question under consideration was whether payment of the note had been seasonably demanded, and notice of dishonor given to> the indorser; and doubtless, owing to the great delay, it was not absolutely necessary for the court to decide the precise day of maturity, but it tends to support what we deem the proper construction of the contract. It will be observed that that note drew interest only after maturity. It was held that the note did not and could not mature until the day after its date. This ruling was, as we understand it, based upon the presence in the note of the words “after date.” It is stated in the opinion that the only effect of the words “with interest at the rate of ten per centum per annum after maturity” was to fix the rate of interest, because it would draw interest after maturity without such a clause.

2. Even if the note did mature on the day of its date, the makers have all of that day- in which to make payment, and the plaintiff’s cause of action did not accrue until the next day. Bank v. Townsend, 87 N. Y. 8, and cases cited. Of course, the statute of limitations could not commence to run before the cause of action accrued. There are many opinions in the courts of our state in which it is stated that a cause of action accrues, and the statute of limitations commences to run, “from” or “at,” and one (Bartholomew v. Seaman, 25 Hun, 619) “on,” the date of a demand note; but in none was this essential to the decision; for the statute of limitations had run in every instance, whether the cause of action accrued on the date of the note, or on the day after its date.

It follows, therefore, that the judgment should be reversed, and a new trial granted, with costs to appellant to abide the event.

VAN BRUNT, P. J., and HATCH, J., concur.