Naum v. Naum Bros., Inc.
| Decision Date | 09 November 1982 |
| Citation | 456 N.Y.S.2d 551,90 A.D.2d 960 |
| Parties | Robert E. NAUM, Respondent, v. NAUM BROS., INC. and DRN, Inc., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Lines, Wilkens, Osborn & Beck by James A. Reed, Jr., Rochester, for appellants.
Kensington & Sterba by Costa Kensington, New York City, for respondent.
Before DILLON, P.J., and SIMONS, CALLAHAN, BOOMER and SCHNEPP, JJ.
The purpose of the waiver provision in the two promissory notes sued upon was to excuse presentment, and notice and protest of dishonor which otherwise would be necessary to charge secondary parties (UCC, §§ 3-501, 3-504, 3-511(6); Anderson, Uniform Commercial Code, Legal Forms (2nd Ed), Vol 1, Form 2153). That provision was not intended to waive the specific requirement of a written demand as a condition precedent to acceleration of the notes for default in the payments of interest. Nevertheless, we find that the plaintiff complied with the requirement of a written demand before the defendants made any tender or payments of the past due interest, and hence the notes were accelerated.
Defendants' offer to pay the money due into court pending the determination of a related action was not a valid tender, since it was not an unconditional offer to pay (59 N.Y.Jur., Tender, § 16), nor did it comply with CPLR 3219 which allows the beneficiary of the funds deposited into court to immediately withdraw the funds.
Judgment unanimously affirmed with costs.
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Naum v. Naum Bros., Inc.
...1025 460 N.Y.S.2d 1025 58 N.Y.2d 606, 447 N.E.2d 85 Naum v. Naum Bros., Inc. COURT OF APPEALS OF NEW YORK Feb 08, 1983 456 N.Y.S.2d 551, 90 A.D.2d 960 MOTION FOR LEAVE TO APPEAL Denied. ...