Beaudrias v. Walck — 45 N.Y. St. Rep. 7

Majority

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Isidore J. Beaudrias, Resp’t, v. Ambroise Walck, App’lt.

(Supreme Court, General Term, Second Department,

Filed February 8, 1892.)

Headnote

Bills and notes—Pleading.

The complaint set forth certain instruments in the form of promissory notes which stated that they were given for certain property, and that title to said property was to remain in the vendor and not to pass until all the notes were paid; that payment was demanded and refused when they became due and an assignment thereof to plaintiff. On demurrer, Held, that as there was no stipulation in these instruments for the performance of any act by either party upon which liability to pay them was dependent, an allegation of performance was not necessary, and that the complaint stated facts sufficient to constitute a cause of action.

Appeal from judgment of the county court of Westchester county, affirming judgment of the city court of Yonkers overruling demurrer to complaint

Action upon certain instruments designated as promissory notes. Defendant demurred to the complaint on the ground that it does not state facts constituting a cause of action, and claims that such instruments are conditional contracts for the purchase of property, and that performance should be pleaded in addition to setting out the instruments.

Walter J. Donohue, for app’lt; Ellis & Harrigan, for resp’t.

This action was commenced in the city court of Yonkers upon four written instruments which the plaintiff denominates promissory notes. They are precisely alike except the dates of payment, the first being payable July 1, 1890, after date, and the last October. 1,1890, after date, all being dated April 18, 1890.

The first reads as follows:

“ $20. _ Yonkers, 1ST. Y, April 18, 1890.

_ “ Bor value received July 1, 1890, after date, I promise to'pay to the order of James W. Tufts twenty dollars with interest six .per cent The consideration of this and other notes is the

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following described soda water apparatus; one 8-3 L. Tem. Puffer Cottage, No. 532, which I have received of said James W. Tufts.

“ Nevertheless it is understood and agreed by and between me and the said James W. Tufts that the title to the above mentioned property does not pass to me, and that until all said notes are paid the title to the aforesaid property shall remain in the said James W. Tufts, who shall have the right, in case of non-payment at maturity of either of said notes, without process of law, "o enter and retake, and may enter and retake immediate possession of the said property, wherever it may be, and remove the same. Due July 1, 1890.

“Ahbroise Walck,

“108 New Main street.”

The complaint states that the defendant for value made and delivered to James W. Tufts four certain promissory notes and then sets out copies of the notes in full.

Then it is further alleged that when the notes became due payment of them was demanded and refused, and the defendant has not paid them, and further that before the commencement of the action the notes were sold and assigned to the plaintiff, who is now the owner and holder thereof.

The defendant demurred to the complaint on the grau-.d that it did not state facts sufficient to constitute a cause of action.

The demurrer was overruled in the city court with leave to the defendant to answer on payment of costs, and an interlocutory judgment was entered in pursuance of that decision, from which the defendant appealed to the county court of Westchester county where the judgment was affirmed, and the defendant has appealed to this court from such judgment of affirmance.

It is not necessary to give a name to the instruments set out in ihe complaint. They each contain a promissory note, with a specific statement of its consideration. Then they each contain a statement that the title to the property for which the notes were given did not pass to the purchaser, but remained in the vendor until the notes were paid.

There is no provision in the instruments to abridge the rights of the payee of the notes, or to limit their operation ; on the contrary their payment is contemplated and that event is to determine the time when the title to the property becomes absolute in the purchaser.

There is no stipulation in these instruments for the performance of any act'by either of the parties upon which the liability to pay the note is dependent, as there was in the case of Austin v. Burris, 16 Barb., 643 , and therefore-that case has no application. The other cases cited by the appellant are unlike this in their facts, and we find no authority incompatible with the views wb have expressed.

The judgment should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.