Majority
p. 60John M. Charnock, Resp’t, v. R. Napier Anderson, App’lt. (City Court of New York, General Term, Filed December 1, 1890.)
Headnote
Pleading—Answer—Bills and notes.In an action upon a check the complaint alleged a loan to defendant, who immediately made the check. The answer admitted the loan, but alleged that the understanding was that it should be paid after a certain event, which had not happened; that the check had no relation thereto, but was made without consideration, and for plaintiff’s accommodation. On demurrer, Held, that the answer contained a perfect defense.
The complaint alleges a loan to the defendant, November 4, 1889, of $300, and that thereupon the- defendant made the check of which a copy is there set out. The action is on the check, the
p. 61
allegation as to the loan, perhaps unnecessary, being intended to supply the consideration. The answer admits the loan, but alleges, in substance, that the understanding was that the repayment was to be made three months after a certain event, which had not yet happened, and that the check had no relation to the loan, and was made without consideration, and for the plaintiff’s accommodation. The plaintiff demurred to the portion of the answer above set forth. The court below sustained the demurrer, and from the interlocutory judgment entered on the order the defendant appeals.
Theodore F. Sanxay, for app’lt; 0. F. Hibbard, for resp’t.
The answer pleads a perfect defense, and the facts alleged must, for all the purposes of the demurrer, be taken as true. So considered, the plaintiff has no present right of action for the loan and no cause of action whatever on the check made without consideration and for his accommodation. It follows that the interlocutory judgment must be reversed, and judgment ordered on the demurrer in favor of the defendant, with costs, on payment of which, within ten days after service of the order to be entered hereon, the plaintiff may, if so advised, withdraw the demurrer and proceed with the action upon the issues raised by the answer.
Mo Ad am, Oh. J., and Fitzsimons, J., concur.