
    OSGOOD a. WHITTELSEY.
    
      Supreme Court, Second District;
    
    
      Special Term, February, 1860.
    Pleading.—Demurrer.—Leave to answer.—Complaint AGAINST SURETY ON NOTE.
    Where a demurrer is interposed which the pleader could not have supposed would dispose of the case on the merits, it cannot be deemed to have been put in in good faith.
    
      After putting in such a demurrer, and after failing to avail himself of leave obtained to withdraw it and answer, a motion for an order granting him such leave should not be made, unless the defendant shows a meritorious defence.
    Form of a sufficient complaint on a promissory note, in an action against a maker and a surety.
    Motion for judgment, and motion for leave to answer.
    The action was on a promissory note. The allegations of the complaint were as follows:
    “ That Samuel W. Whittelsey, and William Whittelsey as his security, on the 30th day of December, 1836, at the city of New York, made their promissory note in writing, whereby they promised to pay to Friend Whittelsey or order, ninety days after date, three hundred dollars, for value received.
    “And said plaintiff further shows, that on the 14th day of February, 1837, at the said city of New York, the said defendant Samuel W. Whittelsey, and William Whittelsey as his security, made their certain other promissory note in writing, which they promised to pay to Friend Whittelsey or order, three hundred dollars, ninety days after date, for value received.
    “ And the said payee thereof indorsed the said two promissory notes to the above-named plaintiff; and that when the said notes became due and payable, they were duly presented for payment to the defendant Samuel W. Whittelsey, and payment thereof was duly demanded ; but the same were not paid, nor either of them, and that, due notice thereof was given to the defendants William Whittelsey and Friend Whittelsey.
    “And the said plaintiff further shows, that at the time when the said promissory notes became due and payable, the defendant William Whittelsey was not a resident or within the State of New York, and the jurisdiction of this Court, and has continued without the said State until within a short time past.
    “ And said plaintiff further shows, that he is now the lawful owner and holder of the said two promissory notes; that the same are not paid, nor any part thereof, and that the defendants are, and each of them is, indebted to him thereupon, in the sum of six hundred dollars principal, together with lawful interest thereon, from the date when the same became due and payable respectively.
    “ Wherefore,” &c.
    The defendant William Whittelsey demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. He subsequently obtained a consent that he might withdraw the demurrer and answer, but he failed to do so within the time limited.
    The plaintiff now moved for judgment on the pleadings, on account of the frivolousness of the demurrer. The defendant William Whittelsey at the same time moved for leave to withdraw the demurrer, and put in an answer. His proposed answer was not served with the motion papers; but the grounds of his defence were stated in his affidavits, and they appear in the opinion of the Court.
    
      Charles S. Webb, for the plaintiff.
    I. The defendant should not he let in to set up limitations, cited Morris a. Slatery (6 Abbott's Pr. R., 75); Coit a. Skinner (7 Cow., 401); Halligan a. Golden (1 Wend., 302); Jackson a. Varnish (2 Wend., 394); Havens a. Hoyt (11 How. Pr. R., 454); Walcott a. McFarlan (6 Hill., 227).
    II. The demurrer is palpably frivolous. It should be regarded as interposed for delay. (Darrow a. Miller, 5 How. Pr. R., 247.) The Court has now no power to allow an answer to be put in. (Shearman a. N. Y. Central Mills, 1 Abbott's Pr. R., 190; Marquise a. Brigham, 12 How. Pr. R., 400.)
    
      Gilbert Dean, for the demurrant.
   Lott, J.

The case relied on by the counsel of the defendant in support of the demurrer (Butler a. Rawson, 1 Den., 105), has no application to this. That was an action on the money-counts, and not on the note itself; and it appeared on the trial that the note which was offered to sustain the claim was signed by Eawson as surety. A verdict was rendered for the plaintiff, and a new trial was ordered, on the ground that it was necessary to declare specially on the instrument on which it was sought to charge the surety; and that a recovery could not be had against him on the money-counts. This was declared to be upon the principle that, in the common case of a suit against the makers of a promissory note, the instrument might be given in evidence under the money-counts, for the reason that the note is evidence of money lent to or had, and received by the makers to the plaintiff’s use ; but when one of them signs as surety for the other, and that fact appears on the face of the instrument, the note furnishes no evidence that he received the whole or any part of the consideration, but, on the contrary, it shows that the principal had received the whole consideration. In the present case the action is based on the note itself, and comes within the rule there laid down, and is moreover expressly authorized by section 120 of the Code. There appears, therefore, to be no ground whatever for the demurrer.

Nor can I find sufficient on the facts declared to justify its withdrawal, and to permit the defendant to interpose an answer. Conceding it to be true that the pleader interposed it in the honest belief that it might be available, yet it clearly could not have been done on the expectation of disposing of the cause on its merits. It, therefore, to use the language of the court, Sutherland, J., in Patten a. Harris (10 Wend., 623), “ cannot well be said to have been put in in good faith.” It, moreover, appears that the defendant’s attorney, after obtaining the privilege of withdrawing it, and putting in an answer, voluntarily waived it. Hnder these circumstances the case does not present any claim to the interference of the court, unless it is made reasonably to appear that there is in fact a valid defence. This is not shown. There is no pretence that the notes, or either of them, have been paid in fact. The grounds urged are, that the surety has been discharged by an extension of time to the principal, granted “ on the payment of the interest,” and that the payee of the note petitioned for discharge of the principal under the insolvent act. The mere promise to extend the time of payment on receiving part of the debt, is not such an extension as to discharge the surety. There must be some new consideration for the promise. This is fully decided in Reynolds a. Ward (5 Wend., 501), which presents many facts and circumstances similar to the one under consideration. (See also Draper a. Romeyn and Bade, 18 Barb., 166.)

So far as the case is affected by the discharge of the principal under the insolvent act, it is shown by the affidavit of Mr. Webb, that William Whittelsey himself also assented to the discharge, and was one of the petitioning creditors. It is -also stated, in the affidavits read in opposition to this motion, that the notes had in fact been indorsed over and transferred before those proceedings in insolvency. This is confirmed by the fact, also stated by Mr. Webb, that he finds on examination of those proceedings, that no mention of or reference to those notes is made. Other circumstances are also set forth tending to show that this ground of defence is untenable, but it is unnecessary to refer to them. The result is, that there is no reasonable foundation for the belief that either of those grounds of defence can be available. There is, it is true, an apparent defence growing out of lapse of time. It is stated, however, in the complaint, that when the notes became due and payable, “the defendant William Whittelsey was not a resident, or within the State of Hew York, and the jurisdiction of this court, and has continued without the said State, until within a short time past.” This allegation is met only by the defendant in a statement contained in his affidavit, “ that deponent has been a resident of the State of Hew York for more than twenty-five years last pastand, also, “ that ever since said notes were given, he has been a constant resident of the State of Hew York, and is now such a resident.” There is, therefore, a fair and reasonable ground for the assumption that the notes are not in fact barred by the statute of limitations. But if it were otherwise, it would not be an exercise of a sound discretion to permit that defence to be interposed—when it is not denied, but is in effect conceded that the debt has not in fact been paid. Tinder all the circumstances, it appears to me to be a case where substantial rights are sought to be defeated by a technical defence, and where the plaintiff should be allowed to realize the debt justly due to him, and to which he has become entitled in the due and regular course of legal proceedings.  