Hyperlawhypertext legal databasebeta Kinsella v. Lockwood 140 N.Y.S. 513

← Cases

Kinsella v. Lockwood

140 N.Y.S. 513 Court Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ. Decision date 1913-03-07 English

Delivered by BIJUR, J.

Contents

Majority

p. 513
(79 Misc. Rep. 619.)
KINSELLA v. LOCKWOOD.
(Supreme Court, Appellate Term, First Department.
March 7, 1913.)

Headnote

1. Bills and Notes (§ 147[1] ) — Negotiability — Parties — Statutory Provisions.
Under the express provisions of Negotiable Instruments Law (Consol. Laws 1909, c. 38) § 20, subd. 4, a note payable to the payee, and not to order or bearer, is not negotiable.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 363; Deo. Dig. § 147.*]
2. u*t.t« and Notes (§ 92*)—Bequisites—Consideration.
A note not negotiable because not payable to order or to bearer does not import consideration.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 166-173, 175-212; Dec. Dig. § 92.*]
3. Pleading (§ S*)—Conclusion—Consideration fob Note.
An allegation, in a complaint on a note, that it had been given “for a valuable consideration,” is merely a statement of a legal conclusion, and not of a fact, and renders the complaint bad on demurrer.
[Ed. Note.—For other cases, see Pleading. Cent. Dig. §§ 12-28%; Dec. Dig. § 8.*]
Appeal from Municipal Court, Borough of Manhattan, Seventh District.
Action by Clinton W. Kinsella against Traviss D. Lockwood. From a judgment overruling defendant’s demurrer that the complaint did
p. 514
not state a cause of action, defendant appeals. Reversed, and demurrer sustained, with leave to plaintiff to plead over.
Argued February term, 1913, before SEABURY, GERARD, and BIJUR, JJ.
McLear & McLear, of New York City (Robert E. McLear, of New York City, of counsel), for appellant.

[1] The complaint pleads a note drawn payable to the payee, but not to order or to bearer. Under section 20 of the Negotiable Instruments Law (Consol. Laws 1909, c. 38), a note in that form is not negotiable. Fulton v. Varney, 117 App. Div. 572 , 575, 102 N. Y. Supp. 608 .

[2] It therefore does not import consideration. Deyo v. Thompson, 53 App. Div. 10 , 65 N. Y. Supp. 459 .

[3] While the complaint alleges that it had been given “for a valuable consideration,” such an allegation is merely a statement of a legal conclusion, and not of a fact. Browning, King & Co. v. Terwilliger, 144 App. Div. 516 , 519, 129 N. Y. Supp. 431 .

Judgment reversed, and demurrer sustained, with leave, however, to plaintiff to'plead over within six-days, on payment of costs of the. action to date, and with costs of this appeal to appellant. All concur.

Cases cited