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State of New York National Bank v. Kennedy

Supreme Court of New York, Appellate Division

June 28, 1911

STATE OF NEW YORK NATIONAL BANK, Respondent,
v.
ANNA M. KENNEDY and ADELAIDE G. KENNEDY, Appellants, Impleaded with GILBERT F. KENNEDY and ELIZA B. KENNEDY, Defendants.

APPEAL by the defendants, Anna M. Kennedy and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 21st day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk's office on the 1st day of November, 1910, denying the said defendants' motion for a new trial made upon the minutes.

The action was to recover upon a promissory note made October 22, 1907, for $2,300, payable on demand with interest made by the 'estate of David Kennedy, By Gilbert F. Kennedy, Eliza B. Kennedy, Executors.' It was given for an indebtedness then due the bank, of which $1,200 was for a protested check made by the estate of David Kennedy on the Farmers'

Page 670

Loan and Trust Company of New York; the remainder was upon a protested draft made by David Kennedy's Sons on Charles Kennedy in Utah.

Eliza B. Kennedy is the widow of Dr. David Kennedy, and she and her son Gilbert are trustees and executors under his will, and the other defendants are daughters of Dr. David Kennedy, and all the parties are beneficially interested in his estate.

At the request of Gilbert Kennedy the bank agreed to accept the note in suit for the indebtedness mentioned, and it was understood between him and the bank that the note was to be paid as soon as he could, although there was no definite time when he should take care of it, and about two months after the note was made the cashier of the bank called his attention to it and suggested that he pay the same, and afterwards again called his attention, telling him that he had not paid it as soon as he was to, and it wrote him letters asking payment of the note, asked payment over the telephone, asked payment from him while he was in the bank, and he replied to some of these requests or demands that they, the Kennedy family, were not then able to pay the note. On April 15, 1909, the note was formally presented for payment at the bank and protested for non-payment, and this action followed.

Gilbert Kennedy was a director of the bank. October tenth, before the giving of the note, the daughters and mother had joined with Gilbert in guaranteeing certain other notes to the bank amounting to $20,450.

This case was before the court upon the pleadings in 138 Appellate Division, 932, where an interlocutory judgment overruling a demurrer to the complaint for insufficiency was sustained.

The complaint is in the usual form against makers and indorsers. The defendant there contended that the lapse of time was, as a matter of law, unreasonable and that the complaint was, therefore, insufficient.

The court considered the pleading sufficient and that it was a question of fact to be determined upon the trial whether the presentment was made within a reasonable time or not.

COUNSEL

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Rounds, Hatch, Dillingham & Debevoise [Eugene Congleton and Ralph S. Rounds of counsel], for the appellants.

William D. Brinnier [Gilbert D. B. Hasbrouck of counsel], ...


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