Majority
p. 647Thomas J. Clute, Resp’t, v. William G. McCrea, App’lt. (Supreme Court, General Term, Second Department, Filed December 13, 1887.)
Headnote
Pleading—Counter-claim.The counter-claim in the answer in an action averred that defendant “loaned and advanced to plaintiff at his request divers sums of money." Held, that this allegation stated a cause of action. That it was not necessary to aver that the money is due.
Appeal from an order sustaining a demurrer made at the Kings county special term.
George W. McAdam, for app’lt; Thomas J. Clute, attorney in person.
The counter-claim avers that defendant “ loaned and advanced to plaintiff, at his request, divers sums of money.”
That allegation states a cause of action. It is not necessary to aver that the money is due. The presumption of law is that it was due at once.
The allegation that, “he promised to pay as defendant might direct,” is only what the law implies from the fact of the loan, and does not render a demand necessary to sustain an action. ¡Not being necessary to sustain the action, it need not be pleaded.
The order should be reversed, with costs.
Barnard, P. X, and Dykman, J., concur.