
    Theodore Herman, John Murphy and Oscar W. Herman, Resp’ts, v. Herman Bencke, App’lt.
    
      (City Court of New York, General Term,
    
    
      Filed February 25, 1887.
    
    1. Pleading—Answer—Contradictory, in terms not allowed.
    The answer in an action on a note alleged that the note was delivered “without ” value,and on “ promises and considerations,” which have failed. It is a contradiction in its terms, and, therefore, not permitted by the rule of practice.
    2. Bills and notes—Transfer on last day of grace.
    The transfer of a note on the last day of grace, before actual dishonor, is a bar to the equities sought to be interposed.
    Appeal from a judgment directed by the court in favor of the plaintiff.
    
      Connoly, Lewinson and Mack, for resp’ts; Frank F. Van Derveer, for app’lt.
   Hyatt, J.

The plea contained in the answer is bad and indefinite; it alleges that the note was delivered “without-value,” and on “promises and considerations,” which have failed.

These promises may have constituted a good consideration, as mutual promises generally do. The answer, however, is a contradiction in its terms. It is a pleading,, divided against itself, a form not permitted by the rule of practice.

Although the note in question was transferred on the last day of grace, yet it was transferred before actual dishonor and so as to bar the equities sought to be interposed. Continental National Bank v. Townsend, 87 N. Y., 8, 10.

That the note in suit was presented and protested on the day when it was due, there is no dispute.

The maker or acceptor had the whole day to make payment, and although he should in the course of the day refuse payment, yet, if he subsequently, on the same day, made payment, it would be good, and the notice of dishonor would be of no avail. 2 Daniel, Neg. Inst., § 1235.

Whether or not the note was given to the plaintiffs for sufficient value, is entirely immaterial under the present answer.

The judgment is well founded and should be affirmed.

McAdam, Ch. J., concurs.  