94 N.Y.S. 358
Appellate Terms of the Supreme Court of New York
Decided June 22, 1905
Appellate Terms of the Supreme Court of New York · decided 1905-06-22
<p>Payment—Acceptance oe Note—Right to Recover on Original Debt.</p> <p>A creditor taking a note for Ms claim, believing that it was indorsed as agreed, may, on finding that it was not so indorsed, and objecting thereto, recover on the claim without returning the note; no demand for its return having been made by the debtor.</p> <p>[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Payment, § 141.] MacLean, J., dissenting.</p>
Affirmed · Decided 1905-06-22
¶1There is abundant evidence that plaintiff never accepted the $200 note which was left with him. He took it, believing it to have been properly indorsed, and, as soon as he found that it was not, he objected that it was not what he had agreed to take. Of course, he is bound to return it on demand, but no demand has been made.
¶2The judgment should be affirmed, with costs.
¶3DUGRO, J., concurs.