Majority
p. 648Thomas J. Clute, Resp’t, v. William G. McCrea, App’lt. (Supreme Court, General Term, Second Department, Filed December 13, 1887.)
Headnote
Bills akd notes—When dub. 'In an action brought to' recover upon a note, it appeared by the terms of the note that it was not payable until the payee was finally successful in a certain action, and the meaning of finally successful was stated to be “ when all appeals shall have been disposed of and the right to appeal has expired.” Held, that the note was not due while there was still a. possibility of a judgment which might be the subject of an appeal.
Appeal from a judgment rendered in favor of the plaintiff on a trial before the court- without a jury, -the sole ground of the appeal being that the conclusions of law were not warranted by the facts as found, and to which conclusions of law exceptions were duly, taken.
The action is. on a note made by the defendant in the words and figures following, to wit:
“New York, April 23, 1884.
On demand, I promise to pay to the order of Isabella B. Olute three hundred and forty-seven dollars, with interest, value received, provided she shall be finally successful in the action brought by her and now pending against Jacob Ernies and Adam Emmerich, and in the event of her being: defeated in said action, then this note is to be null and void; by finally successful, it being understood, after all appeals shall have been disposed of and the right to appeal has expired.
WILLIAM G-. McCREA.”
And delivered said note to said Isabella B. Olute.
On the trial the court, while finding that the note in suit by its terms only became due and payable on the final termination of the action pending against Knies and Emmerich, and that said action was still at issue and undetermined, also found as a conclusion of law that said note was due and plaintiff was entitled to judgment thereon,but without finding any fact on which to warrant such conclusion.
George W. McAdam, for app’lt: Thomas J. Clute, att’y in person.
The note in suit becomes payable only when, the payee becomes finally successful in the suit therein described.
It appears by the sixth finding of fact that said action is still pending and undetermined.
The payee has not yet been finally successful, and the note is not yet due.
p. 649
Defendant’s exception to the conclusion of law of the trial judge was well taken. . ■ . . .
The last clause of the note states that ‘ ‘ finally successful ” signifies “ when all appeals shall have been disposed of and the right to appeal has expired.”
As the case now stands for trial, no one can say that all appeals have been disposed of. The judgment next to be rendered may be the subject of an appeal.
Judgment reversed with costs to appellant to abide the event.
Barnard, P. J., and Dykman, J., concur.