
    Isidore J. Beaudrias, App’lt, v. Frank M. Curtiss, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 8, 1892.)
    
    Bills and notes—Time of payment.
    Defendant purchased the interest of. plaintiff’s assignor in a business, and paid therefor in notes payable on demand; but in the letter enclosing such notes stated that they were payable “as soon as I get a partner who has sufficient means to place the business on a sound footing.” It appeared that prior to sending the notes defendant had sold the business. Held, that the statement in the letter did not change the time of payment as stated in the notes, and that they were payable on demand.
    (Dykman, J., dissents.)
    Appeal from judgment dismissing the complaint on the merits.
    Action upon ten promissory notes made by defendant to the ■order of E. M. Bént, plaintiff’s assignor.
    
      John F. Brennan, for app’lt; Palmer & Boothby, for resp’t.
   Barnard, P. J.

The exact interest which Bent, plaintiff’s assignor, had in the business of the aluminum plating is not decisive or even material. Assuming a partnership, Curtiss had sold the business to his mother before the notes in question, except the $100, were given. The notes were given ostensibly to buy out Bent’s share in the business, and while the defendant inserted in the letter inclosing the notes that they were to be payable “ as soon as I get a partner who has sufficient means to place the business on a sound footing,” the words were idle. The business had been sold before the letter was written, and by means of the letter and the notes a good title was made to the "business in the defendant’s .mother. Defendant alone signed the bill of sale to her. It would be a very inequitable result if by this clause in the letter the defendant could get a title to the property which he had wrongfully sold, and pay Bent nothing.

The judgment should be reversed, and a new trial granted, costs to abide event.

Pbatt, J., concurs; Dykman, J., dissents.  