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Kerr v. Smith

156 A.D. 807 Court First Department, Decision date 1913-05-29 Docket Appeal No. 1 English

Contents

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p. 807
Emilie W. Kerr, as Executrix, etc., of Eliza M. Smith, Deceased, Respondent, v. Addison Smith, Appellant, Impleaded with Henry Ives Smith, as Executor, etc., of Eliza M. Smith, Deceased, Defendant.
(Appeal No. 1.)
First Department,
May 29, 1913.

Headnote

Bills and notes — promise to pay sum at death of another — nonñegotiable instrument — complaint.
An instrument promising to pay a certain sum to the estate of a person named upon her death is not negotiable, not being payable to order or to’ bearer or at a determinable future time. Hence, in an action upon said instrument, it is necessary to allege a consideration.
Appeal by the defendant, Addison Smith, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 14th day of April, 1913.
James R. Sloane, for the appellant.
Edward D. Bryde, for the respondent.

Appeal from an order denying defendant’s motion, made on additional affidavits, to vacate an attachment.

An inspection of the complaint shows that it states no cause of action, and that the attachment was improvidently granted. The complaint contains thirteen separate counts substantially identical in form, the portions of which material to this appeal are as follows: “ That heretofore and on or about the day of Addison Smith made and delivered to one Eliza M. Smith his promissory note in writing, dated on that day, and thereby promised to pay the estate of Eliza M. Smith, upon her death, the sum of dollars.” Instruments in the above form, are not negotiable. They are payable neither to order nor hearer, nor are they payable at a “ determinable future time.” (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], §§ 20, 23; Rice v. Rice, 43 App. Div. 458 .) It was, therefore, necessary to allege a consideration. (Deyo v. Thompson, 53 App. Div. 9 .) No such allegation appears.

p. 808
The order appealed from should he reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.

Present—Ingraham, P. J., Clarke, Scott, Dowling and Hotchkiss, JJ.

Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars, costs.

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