John M. Bruce, Respondent, v. Wellington A. Carter, Appellant

John M. Bruce, Respondent, v. Wellington A. Carter, Appellant. (Argued February 12, 1878; decided February 22, 1878.) This action was brought against defendant, as indorser of two promissory notes made by one ICelley. The notes were given under and in pursuance of a stipulation for the settlement of two suits—one in the Superior Court of New York and one in the Supreme Court; the latter was against Kelley, the defendant and others. By the stipulation, the defendants, among other things, agreed to pay plaintiffs $6,000, by notes payable at times specified. Plaintiffs agreed that upon payment of $3,000 the suits in the Superior Court should be discontinued, and that each of the plaintiffs should execute to defendants a release under seal, releasing the defendants in both of the actions from all claims and demands because of the matters set forth in the complaints; the release, however, not to become operative until all the notes were paid. When all the notes were paid, then the action in the Supreme Court was to be discontinued. The notes in suit were the last two notes given under the stipulation. The defense was that the discontinuance of the suits in the Superior Court and the release were conditions precedent to the payment of the notes, and that, as they had not been executed, plaintiffs could not recover. Held, untenable; that as the notes were to be and were made payable, absolutely at a time specified, and were not made dependent upon any condition, the case was one of mutual but independent promises. Geo. P. Avery for appellant. Edward M. Shephard for respondent. [MAJORITY — Rapallo, J.,] Rapallo, J., reads for affirmance. All concur. Judgment affirmed.