Van Rensselaer v. Kirkpatrick , 1862 N.Y. App. Div. LEXIS 247 ( 1862 )

By the Court, Miller, J.

The question to he determined in this case is, whether the agreement between Van Rensselaer, the holder, and Comstock, the maker, of the notes was a valid contract, founded upon a sufficient consideration.

The taking of a mere security from the principal debtor, having time to run, in payment of a note overdue, or any other alteration of the contract between the creditor and the principal debtor, without the consent of the surety or indorser, will discharge him. (Myers v. Welles, 5 Hill, 463. Fellows v. Prentiss, 3 Denio, 512. Hart v. Hudson, 6 Duer, 294. Huffman v. Hulbert, 13 Wend. 375. Taylor v. Allen, 36 Barb. 294. Dorlon, adm’r, v. Christie, 39 Barb. 610.)

Forbearance by a creditor, without any binding agreement to refrain from taking proceedings, will not exonerate the surety. There must be a valid consideration for the agreement, and such as will preclude the creditor from enforcing payment against the indorser until the expiration of the period specified. (Chitty on Contracts, p. 468. Reynolds v. Ward, 5 Wend. 501. Bank of Utica v. Ives, 17 id. 501. Draper v. Romeyn, 18 Barb. 166.)

The consideration for the agreement to delay the payment of the notes in suit was the payment of weekly installments and the assignment of an account which had not accrued at the time. No new note was given, and no hew security actually taken. The single installment paid, and those to be paid thereafter, were all due at the time of the agreement, and the defendant and the maker of the note were liable to pay the whole amount. Numerous authorities hold that such an agreement is without any consideration, and void. (Pabodie v. King, 12 John. 426. Miller v. Holbrook, 1 Wend. 317. Reynolds v. Ward, 5 id. 501. Bank of Utica v. Ives, 17 id. 501. Draper v. Romeyn, 18 Barb. 166. Chit, on Bills, 447.) • I think these authorities are conclusive on the point presented.

.[Albany General Term, December 1, 1862.

.There being no valid consideration for an agreement to extend the time of payment, the terms of the original contract between the maker and the holder of the notes were not changed, and the indorser was not discharged. There was no consideration of benefit on the one side, or harm on the other, to raise or give effect to the promise. (Gahn v. Niemcewicz, 11 Wend. 312.) The holder would have had an unquestionable right to prosecute the maker and indorser, and the agreement alleged would not have been a defense. It is said that the contract was executed. The agreement to assign was never carried out, and could not be enforced. The payment of an installment was but a partial execution of it, and only the payment of what was actually ^due. Under the cases cited, it can not be regarded either as a consideration for extending the time, or as the actual full execution of the agreement. I think the decision of the referee was right, and the judgment should be affirmed.

Judgment affirmed..

Soffeloom, ieeklmH and Milter, Justices.]