Wheeler v. . Warner
Cases that cite this one
38 later published cases cite this decision. The 25 that cite it most often are listed here.
- Edwards v. German-American Trust & Savings Bank (Ill. App. Ct. 1919)
- Irish v. Citizens' Trust Co. (District Court, N.D. New York 1908)
- Hyman v. Doyle (New York Supreme Court 1907)
- Hardon v. Dixon (Appellate Division of the Supreme Court of New York 1902)
- Nye v. Lothrop (Mich. 1892)
- Turner v. Iron Chief Mining Co. (Wis. 1889)
- In re the Judicial Settlement of the Accounts of Long (New York Supreme Court 1886)
- Mesiano v. Mazzeo (New York Supreme Court 1958)
- Colonial Beacon Oil Co. v. Jones (New York Supreme Court 1937)
- Schaick v. Bank of Yorktown (New York Supreme Court 1934)
- Peoples Bank of Hamburg v. C. L. Gates, Inc. (Appellate Division of the Supreme Court of New York 1931)
- Citizens Bank of Pleasantville v. Taylor (Iowa 1926)
- Crosby v. Bank of Niagara (New York Supreme Court 1915)
- Brooklyn Bank v. . Barnaby (N.Y. 1910)
- North American Trading & Transportation Co. v. Byrne (United States District Court for the District of Alaska 1910)
- Darby v. Darby (La. 1908)
- In re Girvin (District Court, N.D. New York 1908)
- Church v. Stevens (Appellate Terms of the Supreme Court of New York 1907)
- Wurth v. City of Paducah (Ky. Ct. App. 1903)
- Central Bank v. Kimball (Appellate Division of the Supreme Court of New York 1902)
- Raegener v. Medicus (Appellate Division of the Supreme Court of New York 1901)
- Neal v. Brown (New York Supreme Court 1901)
- Raegener v. Medicus (New York Supreme Court 1900)
- Dolan v. Mitchell (Appellate Division of the Supreme Court of New York 1899)
- Dolan v. Mitchell (Appellate Division of the Supreme Court of New York 1899)
This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.
Opinion of the Court
The decision in Merritt v. Todd (23 N. Y., 28), seems to have caused some disturbance in the law as to the right of parties upon demand notes. That case simply decided that an indorser on such a note bearing interest was not discharged, though no demand was made upon the maker until some three and a half years after the making of the note. That as between holder and indorser, such a note was not due until demand made. This rule, by the decision itself, was confined to that particular case, and did not apply, nor was it claimed to apply, to the rights of holders of such paper as against the maker. We are not disposed to extend the rule there laid down.
There is no divided opinion here or in England that upon such a note, with or without interest, an action may be maintained against the maker without any demand because it is due. Ho demand can be sued before due; no action will lie upon any claim of any description arising upon contract before it is due. To say that the suit is the demand is to repeat an unmeaning phrase as thus used, which no number of repetitions can make sensible. A demand note is due forthwith, and hence may be sued without demand, nor until this decision oí Merritt v. Todd has there been any difference of opinion as to the time when such a note is barred by the statute. But that decision does not- settle this question.
There is really no reason why the statute should not run, and that it does run both here and in England is settled beyond all doubt.
If Merritt v. Todd, in its reasoning, can be regarded as impugning this doctrine, it has been distinctly decided again *521 in this court since that decision. (Howland v. Edmonds, 24 N. Y., 307.) In that ease the point was whether the note sued upon was substantially a demand note. The court held it was, and therefore barred. In this case Merritt v. Todd, although just decided by the same court, was not alluded to or regarded as having any legitimate bearing upon the question. In Herrick v. Woolverton (41 N. Y., 581), originally tried before me, and reversed by my brethren of the Supreme Court, this point was discussed, and all the judges who delivered opinions agreed that a note like this is due forthwith so far as regards the statute. (See the authorities cited; and see Angel on Limitations, p. 89, § 95, and authorities cited in note; also an English elementary work, Darby & Bosang Stat. of Lim., p. 20, and cases cited.)
This rule is not affected by any decision to the contrary in this court.
The judgment must be reversed, and new trial ordered.
All concur.
Judgment reversed.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.