The finding of the judge that bn the 8th and 9th days of November,.I860, the Bank of Sing Sing became indebted to the plaintiff in the sum of $332.52, being the amount bf certain checks on said bank, and in the further sum of $375, and $80 for moneys Collected by the bank, on notes forwarded by the plaintiff to said bank for collection, appears to have been warranted by the evidence in the case. The testimony establishes the foregoing facts, beyond any controversy or dispute, and the ledger of the batik proves that the plaintiff was credited with these amounts. It does not alter the fact that the bank was indebted for the amount Of the checks and notes, to' the plaintiff, because they wete collected and the money paid to the bank. The indebtedness on account of them, to the plaintiff, still existed, and there is, therefore, no ground of exception to this finding of the judge;
*220I also think there was sufficient evidence to authorize the finding of the judge that the plaintiff demanded a return of the papers and notes held by the Bank of Sing Sing for collection. One of the plaintiff’s witnesses testifies that he stated his business in the presence of the president, cashier and some of the directors, in the room of the bank; that it was to collect or get security for the draft and the accrued indebtedness, and to withdraw the paper of the plaintiff held for collection and which was about maturing. That he was to get gold or bank bills, or other good security, and to withdraw the collection paper. The witness also inquired what had become of the paper forwarded for collection, consisting of checks on banks in their neighborhood. There was some evidence to show a demand, and although the cashier of the Bank of Sing Sing swears that no collection paper was demanded by Mr. Olcott, yet I think his testimony means that a demand was not made formally, in so many words. Even if there is a contradiction of the witnesses upon this point, yet as there was some evidence authorizing the finding of the judge, it must be upheld, within well settled rules.
It is insisted that the note was taken by the plaintiff with full knowledge that it was an accommodation note, and that the plaintiff can not recover unless it gave a valuable consideration for it, which does not appear to have been done.
The evidence on the trial shows that the plaintiff’s agent, on the 7th of November, 1860, demanded payment of the moneys due from the Bank of Sing Sing, and a return of the paper and notes which had been left for collection with said bank. The defendants then stated to the plaintiff’s agent that the bank was embarrassed, temporarily, and requested him not to press his claim by taking legal action for the collection of the protested draft and' other indebtedness accrued and to accrue, and not to withdraw the notes held for collection. The request of the defendants was acceded to, and in consideration of it the defendants made and delivered the note in question, to the plaintiff.
*221It appears to me that this agreement embraced a consideration for the note. In the first place, it was of some importance to the Bank of Sing Sing, in its crippled condition at the time, that the paper left for collection should not be withdrawn and prosecuted. This was prevented being done, by the agreement thus entered into. The plaintiff was thereby precluded from taking possession of the collection paper, and the same was suffered to remain under the control of the bank, thus ' preventing- the plaintiff from instituting a suit or suits for the recovery of what was then due, and from exercising authority over such portion as was not due.
In the second place, the time for the payment of the original indebtedness was by this agreement extended, and until it had expired the plaintiff was precluded from bringing a suit against the Bank of Sing Sing, for its recovery. I think this was the purport and legal effect of the agreement, and would have been a good defense to a • suit brought against the bank prior to the expiration of the period which the note had to run. In the interview between the plaintiff's agent and the defendants, the agent expressly stated that he came to get security and to withdraw the collection paper; and upon being asked if the plaintiff would be willing to give a month's time, he replied, a month or more, as his object was to get security. The note was then given, by the defendant. Can there be any doubt that, under these circumstances, the time for the payment of the indebtedness of the bank was extended, and that a valid and legal subsisting agreement existed, which would be a bar to any suit brought by the plaintiff, to recover the demand, until the note was due ? I think not.
An agreement to forbear to sue is a good consideration for the promise of a third person to pay the debt. (Watson v. Randall, 20 Wend. 201. Edwards on Bills, 223.)
Although the law will not infer that any forbearance was agreed to or intended, merely because a new note was taken, *222for an old debt, yet where the evidence establishes that such an agreement was made in connection with the making of a note having time to run, it will hold it to be valid and binding. The judge has found that there was such an agreement; and if there was, there was a valid consideration for the note.
[Albany General Term, May 2, 1864.As there was clearly a good and sufficient consideration to support the note, ip the agreement of the plaintiff not to withdraw the collection paper from the Bank of Sing Sing, and in the agreement not to press the claims against the bank for its indebtedness to the plaintiff which had accrued and was to accrue, it is not necessary to examine some other objections, taken by the defendants.
The judgment must be affirmed, with costs,
Peckham, Miller and. Ingalls, Justices.]