Westchester Mortgage Company, Respondent, v. Thomas B. McIntire, Inc., Defendant, Impleaded with William H. Foster, Appellant

Westchester Mortgage Company, Respondent, v. Thomas B. McIntire, Inc., Defendant, Impleaded with William H. Foster, Appellant. Second Department, June 11, 1915. Bills and notes — effect of extension of time of payment of note in suit upon liability of guarantor who had previously agreed to an extension. Where, after the maker and guarantor of a note were in default in a suit thereon, the holder extended the time of payment of the note in suit and two others for a specified time, such extension did not discharge the guarantor who had agreed to prior extensions. Such written extension of payment did not have a retroactive effect so as to amount to a withdrawal of the pending suit in which the guarantor was in default. Appeal by the defendant, William H. Foster, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 25th day of January, 1915, upon the verdict of a jury rendered by direction of the court, both sides having moved for the direction of a verdict at the close of the case. The judgment was for the amount of a promissory note and interest. Frederick B. Van Kleeck, Jr., for the appellant. Jonathan Holden, for the respondent. [MAJORITY — Putnam, J.:] Putnam, J.: Defendant raises the. effect of an extension of time of payment of a note already in suit. After the maker and guarantor were in default, the holder extended the note in suit, and two others, from July fourteenth to August first. Such indulgence did not discharge appellant as guarantor, because in the previous March he had agreed in writing to one or more extensions if in all not over six months. But appellant urges that this written extension of payment had a retroactive effect and amounted to a withdrawal of the pending suit in which he was already in default. We cannot, however, read into this extension (which only gave further time to pay the note) such enlargement of its scope and effect. It looked to the future and made no mention of the suit which had been regularly instituted. It would be going far to say that such forbearance tacitly discontinued the suit so that if the note should be not paid on August first plaintiff would have to begin a new action. The words used and the intent to be presumed meant only that further steps in the suit and the entry of judgment were to be held in abeyance. If not paid when the time was up the note could then be put in judgment. We may look also at the effect of a contrary holding. To such a kindly forbearance it would annex legal consequences which would tend to discourage courtesy and indulgence to one served with process, while the. policy of the law should favor a reasonable respite to a debtor in temporary difficulty. The judgment should, therefore, be affirmed, with costs. Jenks, P. J., Thomas, Stapleton and Rich, JJ., concurred. Judgment affirmed, with costs.