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Packard v. Long Island R.

101 N.Y.S. 660 Court N.Y. App. Term Decision date 1906-12-11 English

Delivered by *661 FITZGERALD, J.

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p. 660
PACKARD et al. v. LONG ISLAND R. CO.
(Supreme Court, Appellate Term.
December 11, 1906.)

Headnote

Assignment—Action—Conditions Precedent—Demand.
Where the R. company, being indebted to plaintiff, gave him a note due on or before a certain date, to secure payment of which it assigned to him all the moneys due it from defendant, notice of such assignment created but a contingent liability on the part of defendant, and, the note being uncertain as to date of maturity, plaintiff could not sue on the assignment without first demanding payment.
[Ed. Note.—For cases in point, see Cent. Dig. vol. 4, Assignments, § 210.]
Appeal from City Court of New York, Special Term.
Action by Nathan J. Packard and another against the Long Island Railroad Company. From a judgment for plaintiffs, defendant appeals. Reversed.
Argued before GILDERSLEEVE, FITZGERALD, and DAVIS, JJ.
M. Joseph McCloskey, for appellant.
Samuel Packard, for respondents.

This appeal is from an order amending an order overruling a demurrer to the complaint, and also from locutory judgment entered upon the last-named order. The order amending the order overruling the demurrer was entered upon the defendant’s motion, and the appeal therefrom must be dismissed. The demurrer to the complaint was well taken and should have been sustained. .Briefly, the complaint averred that in June, 1906, the August Roesler Company gave to plaintiffs a promissory note for value, in the sum of $1,000, due on or before July 35, 1906. At the time this note was given to plaintiffs the defendant owed the Roesler Company upwards of $5,000 for work done for it by the Roesler Company. To secure the payment of this note the Roesler Company assigned to plaintiffs all the moneys due it from the defendant. Defendant was notified of this assignment on July 13, 1906. On July 35, 1906, payment of the note was demanded of the Roesler Company, but the same not being paid, suit without demand for payment upon or notice to the defendant was begun. No demand for payment is alleged in the complaint. It is not claimed that the assignment to the plaintiffs by the Roesler Company of .the sum due from defendant was an absolute assignment creating immediately an absolute liability on the part of defendant, but the same was given as security merely, for payment of the note. Notice of such assignment created at most but a contingent liability on the part of the defendant, and such liability depended on whether or not the note was paid. The note was uncertain as to its due date, and therefore the knowledge as to when the plaintiffs exacted payment or when demand therefor and default was made was peculiarly within the knowledge of the plaintiffs, and, before payment could be exacted of the defendant, demand for payment upon it should first have been made. This is in accordance with the rule that, when the fact upon which the defendant’s liability depends is within the plaintiff’s knowledge, notice should be given to the defendant before bringing the action. Cole v. Jessup, 2 Barb. 309 ; Bunn v. Lett, 47 N. Y. St. Rep. 77 , 19 N. Y. Supp. 728 ; Wanger v. Swift, 90 N. Y. 38 .

Appeal from order dismissed with $10 costs.

Interlocutory judgment reversed, and demurrer sustained, with costs, and plaintiff allowed to amend the complaint within six days upon payment of costs less the $10 costs imposed upon dismissal of appeal from order. All concur.

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