Sturz v. Fischer

Full title: FREDERICK STURZ, Respondent, v . FREDERICK S. FISCHER, Appellant

Court: Appellate Division of the Supreme Court of New York, First Department

Date published: Jun 1, 1897

19 App. Div. 198 (N.Y. App. Div. 1897)

45 N.Y.S. 1009

Opinion

June Term, 1897.

Leopold Leo, for the appellant.

George S. Hastings, for the respondent.

PARKER, J.:

This is an action for goods sold and delivered. As matter of defense the defendant alleged in his answer, and proved upon the trial, that the plaintiff extended the time of payment of such indebtedness, and to that end accepted defendant's several notes, the face value of which aggregated the amount of defendant's indebtedness; and that not one of such notes had matured at the time of the commencement of this action. The action was, therefore, prematurely brought. ( Martens-Turner Company v. Mackintosh, 17 App. Div. 419.)

The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.

PATTERSON, RUMSEY, O'BRIEN and INGRAHAM, JJ., concurred.

Judgment reversed, new trial ordered, cost to appellant to abide event.