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Parnes v. Celia''s Inc.

Decided: February 8, 1968.

NEDDA PARNES, PLAINTIFF-APPELLANT,
v.
CELIA'S, INC., ETC., MARY PRASKAY, JOSEPH KULAKOWSKI AND WALTER RADZIWON, DEFENDANTS, WALTER RADZIWON, DEFENDANT-RESPONDENT



Conford, Collester and Labrecque. The opinion of the court was delivered by Conford, S.j.a.d.

Conford

Plaintiff appeals from an adverse judgment in the Law Division in her action on certain defaulted notes, as against an accommodation maker, defendant Radziwon. The reason for the trial court's action was that the holder of the notes had extended the date for their payment by accepting from the obligors new notes with extended due dates without obtaining defendant's consent of the defendant and without expressly reserving her rights against him. Since the record satisfies us that plaintiff did expressly reserve her rights against Radziwon, we reverse.

The original series of 12 notes was for $518.75 each, the first due April 29, 1963, the others every two months thereafter. They provided that upon default in any, all became due at once. Radziwon was concededly an accommodation maker. No payment was made on these notes until June 3, 1963, when the first one was paid. Thereafter, without consent of or notice to Radziwon, who was not then available, plaintiff agreed to extend the time for payment of the obligation by accepting a new series of notes for the balance then due in smaller amounts, but conditionally upon Radziwon signing the new notes, and the original notes being retained for enforcement should Radziwon not sign.

The expression of the agreement for the extension is found in the following exchange of correspondence between the representatives of the plaintiff and the principal obligors:

"July 29, 1963

Samuel Parnes, Esq., 921 Bergen Avenue, Jersey City, New Jersey

Re: Celia's Inc.

Dear Mr. Parnes:

Please find enclosed 28 Promissory Notes, plus the interest at 6% from February 25, 1963, paid to the order of Nedda Parnes, through the Trust Company of New Jersey and one note No. 29 in the sum of $116.89 under the same terms, signed by Joseph Kulakowski, President of Celia's Inc.; also Joseph Kulakowski and Mary Praskay have signed the back of each note. However, Walter Rodzowin [ sic ], I have been informed, cannot be located at this time and when he is

located and when surety is substituted for him we will notify you. I did not want to keep these notes any longer, so that on August 1, 1963 you will be in a position to process this series of notes. You may continue to hold the original series of notes, since it does contain the signatures Joseph Kulakowski, Mary Praskay and Walter Rodzowin [ sic ]. Kindly retain these until the signature of surety has been obtained.

Very truly yours,

S/ JOSEPH W. ...


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