Furguson v. United States Land & Investment Co. — 33 N.Y. St. Rep. 425

Majority

p. 425

George W. Furguson, Resp’t, v. The United States Land & Investment Co., App’lt.

(City Court of New York,

General Term,

Filed October 8, 1890.)

Headnote

Trial—Exceptions.

In an action on a bond and coupons, which contained a condition providing that in case of default in payment of interest for ninety days after it became due, and demand of judgment, the whole should be due, no point was made that it was necessary to prove a demand ninety days before suit, but motion was made to dismiss on the ground that plaintiff had failed to prove his cause of action. Held, that this general objection was not sufficient to enable defendant to present the specific objection on appeal, as it might have been obviated on the trial if pointed out.

Appeal from judgment entered on verdict in favor of plaintiff.

W. S. Cowles, for app’lt; A. S. Jackson, for resp’t.

The action is upon a bond issued by the defendant, and on certain coupons attached thereto. The coupons were past due, but the bond did not become due till July 1,1894. There is a special condition expressed in the bond that if default shall be made in the payment of the interest, and continues for ninety days after it becomes due and payable, and has been duly demanded, that, at the option of the holder thereof, the principal sum of the said bond, with all arrearage of interest, shall become due and payable immediately thereafter. The action being upon the bond, as well as the coupons, it was necessary, in order to recover upon the bond, to prove that the interest due upon the bond had been demanded ninety days prior to suit brought, and if this point had been specifically taken at the trial term, it would have been error for the trial judge to have refused a dismissal of the complaint as to the principal obligation. But the attention of the trial judge was not specifically called to this feature of the case, nor to the defect in the proof respecting it. The motion to dismiss was upon the general ground that the plaintiff failed to prove his cause of action. This general objection is not sufficiently explicit to enable the defendant, upon this appeal, to present a specific ground of objection which might, perhaps, have been obviated at the trial if the objection had been pointed out. Falk v. Beeckman, 18 N. Y. State Rep., 1018; Devoe v. Brandt, 58 Barb., 493 ; Newton v. Harris, 6 N. Y, 345 ; Binsse v. Wood, 37 id., 526; Jencks v. Smith, 1 id., 90 ; Lewis v. Ryder, 13 Abb. Pr., 1 . For these reasons it was not error to refuse to dismiss the complaint, and as we have failed to discover any other objection that requires comment, it follows that the judgment appealed from must be affirmed, with costs.

McAdam, Oh. J., Ehelich and Van Wyck, JJ., concur.