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88 5–7

General Provisions

L. 1909, ch. 43

the testimony is conflicting, may be a mixed one on law and facts, which the jury should decide, under the instructions of the court as to the law; but, where they are ascertained and are not in dispute, the question is one of law. Commercial Nat. Bank v. Zimmerman, (1906) 185 N. Y. 210, 77 N. E. 1020. And see, infra, section 131, as to the reasonable time within which presentment of a demand note shall be made.

Evidence. Whether a “reasonable time” has elapsed is generally a question for the court to find from the facts; evidence of a witness as to what constitutes “reasonable time” is not proper. Citizens' State Bank v. Cowles, (1903) 39 Misc. 571, 80 N. Y. S. 598, affirmed 89 App. Div. 281, reversed on other grounds (1905) 180 N. Y. 346.

Cited.- Zaloon v. Ganim, (1911) 72 Misc. 36, 129 N. Y. S. 85, affirmed 148 App. Div. 892, 132 N. Y. S. 1151.

§ 5. Time, how computed; when last day falls on holiday. Where the day, or the last day, for doing any act herein required or permitted to be done falls on Sunday or on a holiday, the act may be done on the next succeeding secular or business day.

This section was derived from the Negotiable Instruments Law of 1897, § 5.

Instruments falling due or becoming payable on Saturday or holiday: see infra, $ 145. What constitutes determinable future time: see infra, s 23. Computation of time where instrument is payable at a fixed period after date, after sight, or after specified event: see infra, s 146. Calendar day: see GENERAL CONSTRUCTION LAW, & 19. Computation of days: see GENERAL CONSTRUCTION LAW, š 20. Computation of time generally: see GENERAL CONSTRUCTION LAW, $ 50. Holidays and half-holidays: see GENERAL CONSTRUCTION LAW, $ 24. Holiday in contractual obligations: see GENERAL CONSTRUCTION LAW, $ 25. Limiting operation of holiday: see EXECUTIVE LAW, $ 9.

Cited.—Walton v. Stafford, (1900) 162 N. Y. 558, 57 N. E. 892; Van Orden v. Simpson, (1915) 90 Misc. 322, 153 N. Y. S. 134; Wax v. Woodbury Ci. Langdon Co., (1914) 88 Misc. 5, 150 N. Y. S. 351.

§ 6. Application of chapter. The provisions of this chapter do not apply to negotiable instruments made and delivered prior to October first, eighteen hundred and ninety-seven.

This section was derived from the Negotiable Instruments Law of 1897, 8 6.

8 7. Law merchant; when governs. In any case not provided for in this chapter the rules of the law merchant shall govern.

This section was derived from the Negotiable Instruments Law of 1897, § 7. Negligence in leaving blank instrument: see infra, & 05.

Cited.- Haddock v. Haddock, (1908) 192 N. Y. 499, 85 N. E. 682, 19 L. R. A. (N. S.) 136.

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L 1909, ch. 43

Form and Interpretation

§ 20

ARTICLE 3

FORM AND INTERPRETATION

Section 20. Form of negotiable instrument.

21. Certainty as to sum; what constitutes.
22. When promise is unconditional.
23. Determinable future time; what constitutes.
24. Additional provisions not affecting negotiability.
25. Omissions; seal; particular money.
26. When payable on demand.
27. When payable to order.
28. When payable to bearer.
29. Terms, when sufficient.
30. Date, presumption as to.
31. Ante-dated and post-dated.
32. When date may be inserted.
33. Blanks; when may be filled.
34. Incomplete instrument not delivered.
35. Delivery; when effectual; when presumed.
36. Construction where instrument is ambiguous.
37. Liability of person signing in trade or assumed name.
38. Signature by agent; authority; how shown.
39. Liability of person signing as agent.
40. Signature by procuration; effect of.
41. Effect of indorsement by infant or corporation.
42. Forged signature; effect of.

§ 20. Form of negotiable instrument. An instrument to be negotiable must conform to the following requirements:

1. It must be in writing and signed by the maker or drawer;

2. Must contain an unconditional promise or order to pay a sum certain in money;

3. Must be payable on demand, or at a fixed or determinable future time;

4. Must be payable to order or to bearer; and

5. Where the instrument is addressed to a drawee, he must be named or otherwise indicated therein with reasonable certainty.

This section was derived from the Negotiable Instruments Law of 1897, 20.

What constitutes a sum certain in money: see infra, $ 21. When promise is unconditional : see infra, § 22. What constitutes a determinable future

§ 20

Form and Interpretation

L. 1909, cha 48

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time: see infra, § 23. Additional provisions not affecting negotiability of instrument: see infra, 24. Omissions not affecting negotiable character: see infra, s 25. When instrument is payable on demand: see infra, § 26. When instrument is payable to order: see infra, 27. When instrument is payable to bearer: see infra, § 28. Sufficiency of indorsement of negotiable instrument: see infra, $ 61. Signature in trade or assumed name: see infra, § 37. Signature as agent or in representative capacity: see infra, $$ 38, 39. What constitutes a negotiable promissory note : see infra, § 320.

Form and negotiability of warehouse receipts: see GENERAL BUSINESS LAW, 88 91, 92, 94. Negotiable documents of title: see PERSONAL PROPERTY LAW, § 108 et seq. Meaning of term signature: see GENERAL CONSTRUCTION LAW, § 46.

Payable to order or bearer.-An instrument payable to named person, and not payable to order or bearer, is not negotiable. Owens v. Blackburn, (1914) 161 App. Div. 827, 146 N. Y. S. 966; St. Lawrence County Bank v. Watkins, (1912) 153 App. Div. 551, 138 N. Y. S. 116; Fulton v. Varney, (1907) 117 App. Div. 572, 102 N. Y. S. 608; Kinsella v. Lockwood, (1913) 79 Misc. 619, 150 N. Y. S. 513; Midwood Park Co. v. Baker, (1910) 128 N. Y. S. 954; Maule v. Crawford, (1878) 14 Hun 193. Thus, interest coupons, when separated from the bonds to which they were annexed, if they are not payable to bearer or order, are not negotiable, although the bonds themselves are negotiable. Evertson v. Newport Nat. Bank, (1876) 66 N. Y. 14, 23 Am. Rep. 9.

A note payable to the estate of a certain named person upon his death, is not payable to order or bearer, and is non-negotiable. Kerr v. Smith, (1913) 156 App. Div. 807, 142 N. Y. S. 57.

Signature.-A person may execute an instrument and bind himself as effectually by his initials as by writing his name in full. Palmer v. Stephens, (1845) 1 Denio 471. ' Figures or a mark may be used in lieu of the proper name; where either is substituted by a party intending thereby to bind himself, the signature is effective to all intents and purposes.” Palmer v. Stephens, (1845) 1 Denio 471. As to liability of person signing in trade or assumed name, see infra, § 37. As to a signature by an agent, see infra, § 38. As to indorsement, see infra, 8 61.

No payee.-A paper in the following form, “Four months after date I promise to pay Ten hundred forty-four 71-100 dollars at 23 Wd. Bank. Value received,” and signed, is not negotiable, and an indorser thereof incurs no liability by his indorsement. Hilborn v. Pennsylvania Cement Co., (1911) 145 App. Div. 442, 129 N. Y. S. 957.

Certificate of deposit.-A certificate of a savings bank to the effect that a person has deposited a certain sum payable to the order of himself in current bank notes on the return of the certificates with interest is a negotiable instrument. Pardee v. Fish, (1875) 60 N. Y. 265, 19 Am. Rep. 176. And see infra, $ 320, as to when an instrument in form a certificate of deposit may constitute a promissory note.

A certificate of deposit which is payable to the depositor or her assigns on return of this certificate, which is assignable only on the books of the company," is not negotiable. Zander v. New York Security, etc., Co., (1904) 178 N. Y. 208, 70 N. E. 449, 102 A. S. R. 492, affirming 39 Misc. 98, 78 N. Y. S. 900.

“Doubtless a certificate of deposit may be issued in the form of a negotiable instrument. ... But from our examination of the subject there seems to be no uniform usage in commercial circles or with monetary institutions as to their forms. Some are plainly negotiable, some equally plainly are not nego: tiable, while between the two extremes are many of the debatable class.” Zander v. New York Security, etc., Co., (1904) 178 N, Y, 208, 70 N. E. 449, 102 A. S. R. 492.

And see BANKING LAW, p. 107.

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L 1909, ch. 43

Form and Interpretation

8 20

Savings bank passbook.—A passbook of a savings bank is not negotiable paper and its possession constitutes in itself no evidence of a right to draw money thereon.

The book imports merely a liability of the bank to the depositor for the money deposited and an agreement to repay him at such time and in such manner as he shall direct. Smith v. Brooklyn Sav. Bank, (1885) 101 N. Y. 58, 4 N. E. 123, 54 Am. Rep. 653.

As to passbooks generally, see BANKING LAW, § 248. Check.-A check in the usual form, is a negotiable instrument. Benedict v. Kress, (1904) 97 App. Div. 65, 89 N. Y. S. 607; Bobrick v. Second Nat. Bank, (1916) 162 N. Y. S. 147. And see infra, § 321 as to checks.

Stock certificates.- Certificates of stock, not being for the payment of money, are not negotiable instruments within the meaning of this section. Cowles v. Kiehel, (1899) 65 N. Y. S. 349. But while certificates of stock do not possess all the qualities of commercial paper, they do possess some of them, and innocent parties dealing in them will be protected upon analogous principles, and in a proper case will be entitled to compel recognition as stockholders. Jarvis v. Manhattan Beach Co., (1896) 148 N. Y. 652, 43 N. E. 68, 51 A. S. R. 727, 31 L. R. A. 776; Knox v. Eden Musee American Co., (1896) 148 N. Y. 441, 42 N. E. 988, 51 A. S. R. 700, 31 L. R. A. 779.

As to certificates of stock as constituting property, see PERSONAL PROPERTY LAW, § 162 et seq. As to certificates of stock generally, see STOCK CORPORATION LAW, § 50 et seq.

United States treasury note.-A United States treasury note issued under the Act of Congress of March 3, 1865, was held to be negotiable, though it was not made payable to any particular person, but the name of the payee was left blank, for any holder had the right to fill in his name and thus make the note payable to himself. Dinsmore v. Duncan, (1874) 57 N. Y. 573, 15 Am. Rep. 534.

Municipal bonds.- Bonds issued under the seal of a state may be negotiable instruments. Illinois v. Delafield, (1840) 8 Paige 527, 2 Hill 159. Village bonds, though under seal, may be negotiable. Rome Bank v. Rome, (1859) 19 N. Y. 20, 75 Am. Dec. 272.

Corporate bonds.- Railway bonds, though under the seal of the corporation, are negotiable instruments. Evertson v. Newport Nat. Bank, (1876) 66 N. Y. 14, 23 Am. Rep. 9. And this is true, though the bond is payable to a named person or his assigns.” Brainerd v. New York, etc., R. Co., (1862) 25 N. Y. 496.

Coupons.- Coupons attached to railroad bonds, which are in terms distinct promises to pay the bearer the amount specified therein at a day and place named, are promissory notes for the payment of the money to the holder and are transferrable by delivery, although detached from the bonds to which they refer; and the fact that they are declared to be for interest upon bonds specified by their numbers does not destroy the negotiability when separated from the bond, or impair the title of one purchasing from another without the production of the bond.

But when interest coupons attached to railway bonds are not payable to bearer or order, they are not negotiable when separated from the bonds, although the bonds themselves are negotiable. Evertson v. Newport Nat. Bank, (1876) 06 N. Y. 14, 23 Am. Rep. 9.

Letter to insurance agent for payment of premium.-A letter to a general agent of an insurance company acknowledging receipt of a policy issued to a third person, and authorizing and requesting such agent to place the policy in force from the date of the letter, and promising to pay to such agent or his order the first annual premium amounting to a mentioned sum, is negotiable. Equitable Trust Co. v. Taylor, (1911) 146 App. Div. 424, 131 N. Y. S. 475; Equitable Trust Co. v. Newman, (1911) 146 App. Div. 953, 131 N. Y. S. 1113, reversing 72 Misc. 52, 129 N. Y. S. 259, affirmed (1914) 211 N. Y. 505 mem.; Equitable Trust Co. v. Newman, (1910) 69 Misc. 494, 127 N. Y. S.

$8 21, 22

Form and Interpretation

L. 1909, ch. 43

243. See also Equitable Trust Co. v. Were, (1911) 74 Misc. 469, 132 N. Y. S. 351; Equitable Trust Co. v. Howe, (1911) 72 Misc. 46, 129 N. Y. S. 112.

Cited.- Hibbs v. Brown, (1907) 190 N. Y. 167, 82 N. E. 1108; Du Bosque v. Monroe, (1915) 168 App. Div. 821, 154 N. Y. S. 462; Izzo v. Ludington, (1903) 79 App. Div. 272, 9 N. Y. S. 744, affirmed (1904) 178 N. Y. 621, 70 N. E. 1100; Petrie v. Miller, (1901) 57 App. Div. 17, 67 N. Y. S. 1042, affirmed (1903) 173 N. Y. 596, 65 N. E. 1121; Waddell v. Hanover Nat. Bank, (1905) 48 Misc. 578, 97 N. Y. S. 305.

§ 21. Certainty as to sum; what constitutes. The sum payable is a sum certain within the meaning of this chapter although it is to be paid:

1. With interest; or
2. By stated instalments; or

3. By stated instalments, with a provision that upon default in payment of any instalment or of interest, the whole shall become

, due; or

4. With exchange, whether at a fixed rate or at the current rate; or

5. With costs of collection for an attorney's fee, in case payment shall not be made at maturity.

This section was derived from the Negotiable Instruments Law of 1897, § 21.

Rate of interest and effect of usury: see BANKING LAW, § 114. Usury generally: see GENERAL BUSINESS LAW, 371 et seq. Penal provisions relating to usury: see PENAL LAW, & 2400.

Provision for collection fees.-An agreement to pay attorney's fees after maturity does not destroy the negotiability of a bill of exchange. Valparaiso Farmers' Nat. Bank v. Sutton Mfg. Co., (1892) 52 Fed. 191, 6 U. S. App. 312, 3 C. C. A. 1, 17 L. R. A. 595. Where a note provides for an attorney's collection fee of ten per cent of the amount of the note in case of non-payment at maturity, and such a provision is valid in the state where the instrument is made and is payable, it will be enforced in an action in the courts of this state. First Nat. Bank v. Fleitmann, (1915) 168 App. Div. 75, 153 N. Y. S. 869.

§ 22. When promise is unconditional. An unqualified order or promise to pay is unconditional within the meaning of this chapter, though coupled with:

1. An indication of a particular fund out of which reimbursement is to be made, or a particular account to be debited with the amount; or

2. A statement of the transaction which gives rise to the instrument.

But an order or promise to pay out of a particular fund is not unconditional.

This section was derived from the Negotiable Instruments Law of 1897,

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