Hyperlawhypertext legal database Gallway & Co. v. Golliek & Smith, Inc. 142 N.Y.S. 468

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Gallway & Co. v. Golliek & Smith, Inc.

142 N.Y.S. 468 Court Argued June term, 1913, before SEABURY, PAGE, and BI-JUR, JJ. Decision date 1913-06-24 English

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p. 468
GALLWAY & CO. v. GOLLIEK & SMITH, Inc.
(Supreme Court, Appellate Term, First Department.
June 24, 1913.)

Headnote

Bills and Notes (§'470[1] )—Actions—Complaint—Nonpayment.
In an action on notes, a complaint failing to allege their nonpayment is demurrable.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 1462; Dec. Dig. § 470.*]
Appeal from Municipal Court, Borough of Manhattan, Third District.
Action by Gallway & Co. against Golliek & Smith, Incorporated. From a judgment for plaintiffs, and from an order overruling a demurrer to the amended complaint, defendant appeals. Reversed, and demurrer sustained.
Argued June term, 1913, before SEABURY, PAGE, and BI-JUR, JJ.
Adolph Hirsch Rosenfeld, of New York City, for appellant.
Otto A. Gillig, of New York City, for respondents.

The failure of the complaint to allege nonpayment of the notes sued upon rendered the complaint demurrable.

p. 469
Wright v. Deering, 2 Misc. Rep. 296 , 21 N. Y. Supp. 929 ; Lafayette Trust Co. v. Lacher, 139 App. Div. 797 , 124 N. Y. Supp. 401 .

Judgment reversed, with costs, and demurrer sustained, with leave to serve an amended complaint upon payment of costs in this court and $5 costs in the court below within six days after service of a copy of the order entered herewith with notice of entry.