
    Leo Popper et al., Respondents, v. William H. Bingham et al., Appellants.
    (City Court of New York, General Term,
    April, 1897.)
    Debtor and creditor — Extension of time of payment.
    An agreement by a creditor to extend the time of payment of a debt admittedly due must be supported by a consideration, and this rule is not changed because such agreement was made by the creditor after service of summons on the debtor, who admits that the debt is due and owing.
    Appeal by defendants from order striking out their answer as frivolous.
    Thompson & Maloney, for appellants.-
    Douglass & Minton, for respondents.
   Van Wyck, Ch. J.

The complaint is upon a promissory note of two hundred and fifty-seven (257) dollars, made by defendants. The answer specially admits every allegation of complaint except nonpayment of the note and affirmatively alleges "that plaintiffs, through their attorneys duly authorized, after commencement of action, made a proposition in writing to settle for fifty (50) dollars cash and balance to be paid in monthly installments of fifty (50) dollars each, which was accepted by defendants through their attorneys in writing.

Appellants contend that this is not an allegation of an agreement between the parties to extend the time of payment of a debt admittedly due and owing, but of a stipulation in writing of the attorneys of record in the action and binding on the parties thereto, although without consideration, but concedes that such an agreement made by the parties themselves before action would have no binding force, unless a consideration therefor was alleged.

The allegation is not. of a stipulation by attorneys but of an agreement between the parties by their attorneys. He who acts through another acts himself.

An agreement by a creditor to extend time of payment of debt admittedly due, must be supported by a consideration. This rule is not changed because such agreement was made by the creditor after service of summons on the debtor who admits that the debt is due and owing. Of course, it would be otherwise if the debtor disputed the claim' or contended that it was not due.

Order affirmed, with costs.

FiTzsiMONS' and McCarthy, JJ., concur.

Order affirmed, with costs.  