Clute v. McCrea — 1 N.Y.S. 96

Majority

p. 96

Clute v. McCrea.

(Supreme Court, General Term, Second Department.

May 14, 1888.)

Headnote

Payment—Demand fob—Unnecessary, When.

Where one loans money to be repaid or applied as he may direct; if no direction be given, the promise to repay may be enforced without a demand.

Appeal from special term; Cullen, Justice.

Action brought by Thomas J. Clute against William Gr. McCrea on a contract to pay a sum of money. Defendant pleaded by way of recoupment that he “had loaned and advanced to plaintiff, at his request, divers sums of money, * * * which he promised to pay or apply as defendant might direct, no part of which had been repaid.” To this plea, plaintiff demurred. The supreme court at special term sustained the demurrer, and defendant appealed.

Argued before Barnard, P. J., and Dykman and Pratt, JJ.

Geo. W. McAdam, for appellant. T. J. Clnte, for respondent.

The answer avers a loan and advance of money by the defendant to the plaintiff, “ which he promised to pay or apply as defendant might direct, no part of which has been repaid.” This part of the answer was held bad on demurrer at special term, and the general term reversed this order. The opinion stated that the words made out a good cause of action; that the law implied a promise from the fact of the loan; and that no demand was necessary, and need not be averred. The opinion did not insert the words “or apply” following the word “pay,” and for that reason a reargument is asked. The omitted words do not change’the rule of law. A promise to pay or apply the moneys of the defendant is merely a promise to pay. If no-direction be given to apply the loan to any specific purpose, the promise to repay the money can be enforced without a demand like other loans. The motion should be denied, without costs.

Dykman and Pratt, JJ., concur.