
    Rinaldo A. Browere, Respondent, v. George H. Carpenter, Appellant.
    (Supreme Court, Appellate Term,
    May, 1906.)
    Compromise and settlement — Performance of agreement to compromise. Stipulations — Enforcement of stipulation — Enforcement in principal action.
    Where the parties to litigation settle and the defendant gives notes which if paid at maturity are to he in satisfaction, otherwise to stand as security with the right to plaintiff to enter judgment for the amount of his claim; and where, before the maturity of one of the notes, defendant applies to plaintiff for a partial extension of it and is told it is held by a third person and, on being asked whether he has any objection to an extension, says he does not care what the holder does, and the holder grants such extension; the plaintiff may not enter judgment for the default of the defendant in not paying the whole of the note thus extended at its maturity; and the fact that it was presented by the holder for payment at maturity and payment demanded, so as to charge the endorsers, does not change the situation, o
    Appeal by defendant from an order made at Special Term of the City Court of the city of blew York, denying defendant’s motion to vacate and set aside the judgments entered and to allow the defendant to come in and defend each of said actions.
    Dittenhoefer, Gerber & James (David Gerber and I. TVT. Dittenhoefer, of counsel), for appellant.
    Francis M. Applegate, for respondent.
   Gildersleeve, J.

The defendant was largely indebted to file plaintiff, evidenced by several promissory notes, upon which actions had been commenced, and in one of which actions judgment had been entered. Being desirous of arranging for a full settlement of all the claims that plaintiff had against him, defendant entered into negotiations with plaintiff, and a compromise agreement, on October 19, 1905, was entered into "in writing between the parties, by the terms of which the defendant agreed to give other notes, made by the Monarch Fire Appliance Company, endorsed by the defendant, amounting to $2,600, and also to pay the costs of the litigation. These notes were made and delivered and the costs paid. The stipulation or agreement between the parties contained a clause that, in case said notes should not be paid at the time specified in said notes, they should be considered as security for the payment of the former notes of the defendant, to the amount specified therein only, and not as full payment of the entire indebtedness of the defendant and, upon default in the pay-' ment of said notes, or any part thereof, the plaintiff herein “shall have liberty to proceed with the aforementioned actions to judgment as though the stipulation had not been made.” If said notes were fully paid at their maturity, then the defendant’s indebtedness was satisfied in full. One of the notes for $1,805, maturing February 24, .1906, is the cause of the present controversy. Some three weeks before this note fell due, the defendant wrote to plaintiff and asked him to take $405 and a new note for $1,400 for sixty days. To this letter the plaintiff replied, saying that one Bradly was then the owner of the note. Subse-. quently, in a personal interview with the plaintiff, the plaintiff again informed the defendant that Bradly owned the note and that, if the defendant desired to “ do anything in reference to said note, he must communicate with Bradly; ” and, upon being asked by defendant if he (plaintiff) had any objections to his (defendant) communicating with Bradly and obtaining the extension asked for, plaintiff replied “he did not care what defendant or Bradly did.” Subsequently the defendant and the attorney for Bradly, acting for him, entered into an agreement by which $805 was paid before the maturity of the note referred to, and the time of payment of the balance of $1,000 due thereon was extended until April 11, 1906. For 'the purpose of holding the endorsers, the'note was, however, presented for payment and protested for nonpayment. The attorney who represented Bradly and agreed upon his part to the extension of the time of payment of the note, seems also to have been the attorney for the plaintiff; as, within a few days after the note was protested by him as a notary public, acting in the interest of his client Bradly, he, as attorney for the plaintiff, claiming that, the failure to pay said note at its maturity cancelled the agreement, without notice to the defendant, entered judgments in the eight prior actions against tne defendant and, from an order denying the defendant’s motion to open the defendant’s default, this appeal comes up. The defendant immediately, and before this motion to open his default was heard in the court below, paid the balance of the $1,805 note. The plaintiff was only entitled to enter judgment upon the original notes sued on, in the event of the absolute failure of the defendant to fully perform the conditions set forth in the written agreement. He predicated his right to so enter the judgments upon defendant’s failure to pay the $1,805 note, which fell due February 24, 1906. The time of payment upon the $1,000 portion thereof was extended to Bradly for a valid consideration, viz., the payment of $805 part thereof before the due date of the note. The defendant obtained this extension with the tacit consent of the plaintiff. He was duly informed that the .defendant was about to apply for such an extension amr asked if he objected thereto, and made no objection. If he had intended to exact strict compliance on the part of the defendant with the terms of the contract as to the time of payment, he should have so informed him when he was asked to make his objections to the defendant’s obtaining an extension for part payment of the note. This he did not do. Having remained silent when he should have spoken, he should not now speak, when, by his silence if not by his language, he disarmed the defendant of any suspicion that he was being led into a violation of his agreement to pay the full amount of the note due upon February 24, 1906. It is true the plaintiff denies that he did state to the defendant that he must communicate with Bradly regarding the note, but he does not deny the interview, or that defendant asked for an extension of the time of payment. For does he claim that he refused to consent to such extension being obtained. The defendant should be' permitted to have his day in court, and the issues between the parties should not he determined upon affidavits. The situation of the plaintiff and his wife, as endorsers of the note to Bradly, was in no way altered to their injury. If the extension of time granted by Bradly was without their knowledge and consent, they were relieved from liability; and, so far as the plaintiff is concerned, the note was paid. In any event, they were relieved from liability to the extent of the payment made before the note was due.

Davis and Clinch, JJ., concur.

Order reversed, with ten dollars costs and disbursements, and motions granted in each action.  