#### State of New York National Bank, Respondent, *v.*Anna M. Kennedy and Adelaide G. Kennedy, Appellants, Impleaded with Gilbert F. Kennedy and Eliza B. Kennedy, Defendants.

Third Department,

June 28, 1911.

Bills and notes — presentment — reasonable time — evidence.

An informal request for the payment of a demand note, not accompanied by a presentment of it. and not intended as. a formal presentment and demand, is not sufficient to put the note in dishonor so as to charge an indorser.

Such informal demand, however, may have an important bearing on the question as to whether the note was actually presented for payment within a reasonable time.

Evidence in an action on a note that it is the custom of banks to hold for years demand paper with an indorser if the parties were sound financially is competent on the question as to whether a presentment was made within a reasonable time.

Where a demand note is in form' the obligation of an estate, and is signed by the son and widow of the testator as “ executors,” the fact that the bank holding the same was informed that the family was not in a position to pay it and that forbearance was requested by the son who was a director of the bank, as well as the relationship and intimate association of the parties to the note, are circumstances which the jury may consider in determining whether the bank had unreasonably delayed presenting it for payment by holding it eighteen months.

■ Appeal by the defendants, Anna M. Kennedy and another, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Ulster on the 21st day of October, 1910, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 1st day of November, 1910, denying the said defendants’ motion for a new trial made upon the minutes.

The action was to recover upon a promissory note made October 22-, 1907, for $2,300, payable on demand with interest made .by the “ estate of David Kennedy, By Gilbert F. Kennedy, Eliza B. Kennedy, Executors.’,’ It was given for an indebtedness then due the bank, of which $1,200 was for a protested check made by the estate of David Kennedy on the Farmers’ *670Loan and Trust Company of New York; the remainder was upon a protested draft made by David Kennedy’s Sons on Charles Kennedy in Utah.

Eliza B. Kennedy is the widow of Dr. David Kennedy, and she and her son Gilbert are trustees and executors under his will, and the other defendants are daughters of Dr. David Kennedy, and all the parties are beneficially interested in his estate.

At the request of Gilbert Kennedy the bank agreed to accept the note in suit for the indebtedness mentioned, find ,it was understood between him and the bank that the note was to be' paid as soon as he could, although, there was no definite time when he should take care of it,, and about two months after the note was made the cashier of the bank ¡called his attention to it and suggested that he pay the same, and afterwards again called his attention, telling him that he had not paid it as soon as he was to, and it wrote him letters asking payment of the note, asked payment over the telephone, asked payment from him while he was in the bank, and he replied to some of these • requests or demands that they,, the Kennedy family, were not' then able to pay the note. . On April. 15, 1909, the note was formally presented for payment at the bank and protested for non-payment, and this action followed.

Gilbert Kennedy was a director of the bank. October tenth, before the giving' of the note, the daughters and mother had joined with Gilbert in guaranteeing certain other notes to the bank amounting to $20,450.

This case was before the court upon the pleadings in 138 Appellate Division, 932, where an interlocutory judgment overruling a demurrer to the complaint for insufficiency was sustained..

The complaint is in- the usual form against makers and indorsers. The defendant there contended that the lapse of time was, as a matter of law, unreasonable and that the complaint was, therefore, insufficient.

The court considered the pleading sufficient and that it was a question of fact to. be determined upon the trial whether the presentment was made within a reasonable time or. not.

*671■ *Rounds, Hatch, Dillingham & Debevoise [Eugene Qongleton and Ralph 8. Rounds*of counsel], for the appellants.

*William D. Brinnier [Gilbert D. B. HdsbroucJc*of counsel], for the respondent.

Kellogg, J.:

The cashier, as a witness, stated that he had informally demanded payment of the note from Gilbert a dozen of times, hut that they were not formal demands of the hank. The note, apparently was not presented and no request or demand was made on Mrs. Kennedy, who joined with Gilbert in making the note. The trial court instructed the jury, in substance, that a mere informal talk asking payment of a note and not accompanied with a presentment of it or intended as a formal presentment and demand was not sufficient to put the note in dishonor. I think this' instruction was well within sections 130 and 134'of the Negotiable Instruments Law. *(Gilpin*v. *Savage,*201 N. Y. 167.)

Unless a formal presentment and demand was' made at the bank an informal demand on Gilbert was not such a demand as the law contemplates as- á basis for charging the indorser if the note is treated as not an obligation of the estate, for, in the case of joint debtors, the demand must be made upon both. (Neg. Inst. Law, * § 138.)

If the obligation is not a note of the estate, it was clearly the note of Gilbert and his mother. These informal demands, however, were important circumstances bearing upon the question whether the note was actually presented for payment within a reasonable time. .

It is urged that it was error to permit the plaintiff to prove that -it was the custom of banks to hold for years demand paper with an indorser, if the parties were good and the bank did not require the funds.

The case was submitted to the jury upon the theory that the question for them to determine was whether the presentment was made within a reasonable time. This evidence cannot

*672change the rule of law applicablé to the case, but was submitted as a circumstance of some weight in judging the actions of the bank.

It is urged that this note was not the note of the éstate, but the individual note of Gilbert and his mother. A part of the note was apparently for an estate matter, and Gilbert and his mother and the two sisters assented to the use of the name of the estate as a maker to the note, and they are hot in á position, therefore, to complain, in considering the question of reasonable time, that the bank treated the note as an obligation of the estate. If it was an obligation of the estate, pressing the makers crowded the estate and was prejudicial to the interests of the indorsers as well as to the makers, all of whom were, interested in the estate.

The form of the note, the fact that the bank was informed that the family was not in a position to pay it, and that forbearance was requested by the person representing the estate, are circumstances which the jury had the. right to give some weight to in determining whether the bank had unreasonably delayed presenting the note for payment.

The relationship and intimate association of the parties to the note, and all the facts and circumstances surrounding the situation, were also proper elements for consideration.

Under all the circumstances, it was a pure question of fact, and we cannot say that the determination of the jury is against •the evidence. '

The judgment and order should, therefore, be affirmed, with costs. .

All concurred.

Judgment and order unanimously affirmed, with costs.