
    TRYON a. JENNINGS.
    
      New York Common Pleas;
    
    
      Special Term, February, 1861.
    Default on Appeal from Marine and District Courts.
    The New York Common Pleas, at general term, require both parties to an appeal from an inferior court to be ready for argument when the case is called. Engagements of counsel are not considered an excuse in such cases for postponing the hearing.
    Upon an application to set aside a judgment of affirmance on such an appeal, regularly taken by default, the court require the appellant to show that his case presents á meritorious question; and this is ascertained by the statement of the case without argument, or by inspection of the return.
    The promise of a maker of several promissory notes that he will pay one of them when it shall mature, is no consideration for an agreement by the holder to forbear and give time for the payment of the other notes ; and the court will not open a default on appeal, where such an agreement to forbear is the only defence.
    Motion to open a default.
    The facts are stated in the opinion.
    
      William C. Russell, for the motion.
    
      Thomas B. Van Beuren, opposed.
   Hilton, J.

—An appeal was taken in this case by the defendants from the determination of the Marine Court, at general term, and which, on being called in its order on the calendar of the general term of this court, was affirmed by default, no one appearing on behalf of the appellants. It is now urged that the omission to appear arose from the business engagements of the appellants’ attorneys elsewhere at the time, and through which this case was unintentionally overlooked.

It does not seem out of place to here remark, that owing to the great number of appeals taken to this court from the Marine and District Courts, we have been obliged to require both parties to the appeal to be ready for argument when their case is called, and an engagement of counsel in another court or elsewhere is not regarded by us as an excuse in these cases, or a reason for postponing the hearing. We regret exceedingly that this course has been forced upon us by the accumulating business of the general term, and wish that it were otherwise; but it cannot be, so long as the number of these appeals is so great, and the time we can devote to them, consistent with a proper regard for our other official duties, so limited.

Therefore it is, that upon an application to set aside a judgment of affirmance regularly taken by default, we have adopted the practice of requiring the appellant to show that his case presents a meritorious question, either upon the law or the facts involved in it; and this we ascertain upon the motion from the mere statement of the question without argument,, or by a careful inspection of the return. After being satisfied on this point, then, if the excuse is sufficient, the default will be opened on terms, but not otherwise.

In the present case it appears from the return submitted, that the action was brought upon a promissory note, being one of several given by the defendants for goods purchased of the plaintiffs; and the defence set up was, that the plaintiffs had agreed to extend the time for payment of the note in suit, provided the defendants paid at maturity one of the notes thus given; that they had performed the agreement on their part by paying the note referred to, and were ready and willing to give their renewal note for the one in suit, payable at the extended time thus agreed upon.

Without determining whether the evidence at the trial established the defence set up, I think it may safely be assumed that, had the defendants proven all they claimed, it would have availed them nothing, as it has long ago been settled by a series of decisions admitting of no question at this day, that such an agreement, being void for want of consideration, would be of. no binding force. (Hoare a. Graham, 3 Camp., 57; Pabodie a,. King, 12 Johns., 426; Fulton a. Matthews, 15 Ib., 433; Miller a. Holbrook, 1 Wend., 317; Reynolds a. Ward, 5 Ib., 501.) The payment of a debt actually due cannot be regarded as conferring a benefit upon the party receiving it, and to countenance the existence of a contemporaneous secret understanding or agreement, differing from- and controlling that expressed npon the face of a note, would' be not only recognizing a new principle with regard to commercial paper, but one of a very dangerous character. (Hoare a. Graham, supra ; Thompson a. Ketchum, 8 Johns., 198; Fitzhugh a. Runyon, Ib., 375; Wells a. Baldwin, 18 Ib., 45.) The farce and effect of a contract must be determined by the contract itself, and not by the proof aliunde; and this general rule of law is as applicable to notes as to other written instruments. (McCurtie a. Stevens, 13 Wend., 527; Parsons a. Gaylord, 3 Johns., 463 ; Edwards on Promissory Notes, 313; Pratt a. Gulick, 13 Barb., 297; Payne a. Ladue, 1 Hill, 116 ; Erwin a. Saunders, 1 Cow., 249; Hunt a. Adams, 7 Mass., 518; Staekpole a. Arnold, 11 Ib., 27.)

The promise here set up was to forbear and give time for payment, in consideration of the defendants doing what they were already bound to do. Such an act of duty could not be regarded as sufficient consideration for any purpose, as the defendants, by paying one of their notes at maturity, but discharged a legal obligation which cannot be supposed to have caused injury or benefit to either party. (Gibson a. Renne, 19 Wend., 389.)

There being' clearly nothing in the defence set up, or attempted to be established at the tidal below, there exists no reason for opening the judgment of affirmance already entered.

Motion denied, with $10 costs.  