Charnock v. Anderson — 11 N.Y.S. 639

Majority

p. 639

Charnock v. Anderson.

(City Court of New York, General Term.

December 1, 1890.)

Headnote

Assumpsit—Pleading.

In an action on a check of defendant alleged to have been given for a loan, an answer which admits the loan, but alleges that the understanding was that the repayment was to be made three months after a certain event which had not yet happened, and that the check had no relation to the loan, and was made without consideration, and for-plaintiff’s accommodation, states a perfect defense, and is, therefore, not obnoxious to a demurrer.

Appeal from special term.

Action by John M. Charnock against R. Napier Anderson. The complaint alleges a loan to defendant, November 4,1889, of $300, and that thereupon the defendant made the check of which a copy is there set out. The action is on the check, the allegation as to the loan (perhaps unnecessary) being intended to supply the consideration. The answer admits the loan, but alleges, in substance, that the understanding was that the repayment was to be made three months after a certain event which has not yet happened, and that the check had no relation to the loan, and was made without consideration, and for plaintiff’s accommodation. Plaintiff demurred to the portion of the answer above set forth. The court sustained the demurrer, and from the interlocutory judgment entered on the order defendant appeals.

Argued before McAdam, C. J., and Fitzsimons, J.

Theodore F. Sanxay, for appellant. O. F. Hibbard, for respondent.

The answer pleads á perfect defense, and the facts alleged must for all the purposes of the demurrer be taken as true. So considered, the plaintiff has no present right of action for the loan, and no cause of action whatever on the check made without consideration, and for his accommodation. It follows that the interlocutory judgment must be reversed, and judgment ordered on the demurrer in.favor of the defendant, with costs, on payment of which, within 10 days after service of the order to be entered hereon, the plaintiff may, if so advised, withdraw the demurrer, and proceed with the action upon the issues raised by the answer.