Third Nat. Bank of Springfield v. Hastings

• Decision Date: 01 October 1892
• Parties: THIRD NAT. BANK OF SPRINGFIELD v. HASTINGS.
• Court: New York Court of Appeals Court of Appeals

134 N.Y. 501

32 N.E. 71

THIRD NAT. BANK OF SPRINGFIELD

v.HASTINGS.

Court of Appeals of New York,

Second Division.

Oct. 1, 1892.

Appeal from supreme court, general term, first department.

Action by the Third National Bank of Springfield, Mass., against Orlando B. Hastings, doing business under the firm name of Hastings & Todd, on a promissory note. From a judgment of the general term (12 N. Y. Supp. 401) affirming a judgment entered on a verdict rendered for plaintiff by direction of the krial court, defendant appeals. Affirmed.

Flamen B. Candler, for appellant.

James L. Bishop, for respondent.

The other facts fully appear in the following statement by FOLLETT, C. J.:

This action was to recover the amount unpaid on a promissory note, and was brought by an indorsee against the maker. It was defended upon the ground that the maker had been discharged from liability. April 11, 1887, the defendant, at the city of New York, made his promissory note, whereby he promised to pay, at that city, to the order of Hurlbut Paper Company, $2,904.46, five months after date. The note was made for the accommodation of the payee, a firm composed of Thomas O. Hurlbut and Henry C. Hurlbut. It was indorsed by the payees, and by them sold to Fennessy, Armstrong & Co., of Springfield, Mass., who, before maturity, sold and delivered it to plaintiff. The Hurlbuts were resident citizens of Massachusetts, and were there engaged in business. The plaintiff was a national bank engaged in business in the same state. The defendant was and is a resident citizen of the state of New York. The notefell due September 14, 1887. On the 19th of July, 1887, the Hurlbut Paper Company was, upon its own petition, adjudged to be insolvent by a court of insolvency of the state of Massachusetts. The note was presented for payment at maturity, but it was not paid, and was protested. September 30, 1887, the plaintiff's president was told that the defendant made the note for the accommodation of the payee. On the next day the summons and complaint in this action were personally served. October 3, 1887, the plaintiff duly proved its claim on said note against the Hurlbut Paper Company in the insolvency court, and on the 5th of that month the insolvents filed with the court a proposal to compromise, by which they offered to pay in full all debts entitled to priority, the expenses of the proceedings, and 20 per cent. of all other debts. A notice to the creditors was issued by the court, and the hearing was set for December 6, 1887, on which date the court found ‘that the required proportion in number and value of the creditors who have proved their claims have assented in writing to said composition in accordance with the law; and, all the requirements of law having been complied with, it appears and I find that said composition has been duly assented to, and is consistent with justice and for the interest of the creditors.’ It was thereupon adjudged that the insolvents should pay the sums into court; that the register should pay it over to the persons severally entitled thereto; and, further: ‘That when said sums of money shall have been paid into court as aforesaid, a certificate of discharge shall thereupon be granted to said debtors.’ January 3, 1888, the insolvents paid the required sum into court, and thereupon they were discharged from all copartnership debts provable against their estates founded on any contract made or to be performed by them within the state of Massachusetts. February 1, 1888, the plaintiff received from the register its percentage on the note, and indorsed thereon the following receipt: ‘Received of E. T. Slocum, register of the Berkshire county, Mass., court of insolvency, five hundred and seventy-five 66-100 dollars, in full of the liability of the Hurlbut Paper Co. on within note, paid under...