Frederick Sturz, Respondent, v. Frederick S. Fischer, Appellant

Frederick Sturz, Respondent, v. Frederick S. Fischer, Appellant. Acceptance of time notes inpayment for goods —extension of time of payment. A vendor who extends the time of payment for goods sold and delivered, and, to that end, accepts notes of the vendee whose face value is equal to the amount Of the .debt, cannot maintain an actipn for the price of such goods '. ..before the notes have-matured. .. ' : . ' • - - Appeal by the defendant, Frederick S. Fischer,.from a judgment of the Supreme Court in favor of the pláintiff, entered in .the office of the clerk of the county of Hew York on .the 16th day of -Janm ary, 189% upon the verdict of a jury, and also from- an order bearing date,the loth day of January,.. 189% and entered.-in said.clerk’s office, denying, the.'defendant’s motion for a new trial made upon the minutes. Leopold Leo, for the appellant. George S. Hastings, for the respondent. [MAJORITY — Parker, J. :] 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. Machintosh, 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, J.J., concurred. Judgment reversed, new trial ordered, cost to appellant to abide event.