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Stoughton v. Chu Fong

130 N.Y.S. 228 Court N.Y. App. Term Decision date 1911-06-29 English

Delivered by BIJUR, J.

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p. 228
STOUGHTON v. CHU FONG.
(Supreme Court, Appellate Term.
June 29, 1911.)

Headnote

Bills and Notes (§ 132[1] )—Defenses—Conditions Precedent.
An agreement that a note then delivered should have no validity until a certain institution was established, and that no such institution was ever established, is a condition precedent to the validity of a note, and constitutes a good defense in an action thereon.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 316-324; Dec. Dig. § 132.[1] ] i
Appeal from City Court of New York, Trial Term.
• Action by Nellie Stoughton against Chu Fong. From a judgment for plaintiff, upon .the pleadings and the opening of counsel, defendant appeals.
Reversed and remanded.
Argued before SFABURY, GUY, and BIJUR, JJ.
Simon Sultan, for appellant.
John T. Canavan, for respondent.

This action is brought to recover upon certain promissory notes. The defense is, in substance, that the notes were given upon the understanding that they were to have no validity whatsoever until a certain institution was established, and that no such institution was ever established. The answer, therefore, pleads a condition precedent to the validity of the notes, and as such pleads a complete provable defense. Smith v. Dotterweich, 200 N. Y. 299 , 93 N. E. 985 , and cases therein cited.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.

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