Stevenson v. Dunn — 52 N.Y. St. Rep. 523

Majority

p. 523

Celeota E. Stevenson, Resp't, v. Ballard S. Dunn et al., App'lts.

(City Court of New York, General Term,

Filed May 9, 1893.)

Headnote

Pleading—Frivolous answer.

An answer in an action for money loaned which admits the loan, and alleges the giving of a note therefor, but does not allege that the note is not due, is clearly frivolous. The taking of a debtor’s note does not extinguish the original debt, but only extends the time of payment, and if it is not paid when due, the creditor may sue on the original demand, and bring the note into court to be given up on the trial.

Appeal from order granting judgment for plaintiff on the pleadings.

A. H. H. Dawson, for app'lts; Ernest H. Ball, for resp't.

The plaintiff loaned money to defendants who gave their note therefor. Plaintiff sued upon the original debt.

Defendants answered admitting the loan and stated the giving of the note. A motion was made to declare the defense pleaded a sham, which was granted.

The rest of the answer not declared sham is clearly frivolous. That part, pleading the giving of the note, is without legal merit

The taking of a debtor’s note does not extinguish the original

p. 524

debt : it is a promise to pay put in writing, and only extends the time of payment of the debt itself until the note is due.

If it is not then paid, the creditor may sue upon the original-demand, and bring the note into court to be given up on the trial. Jagger Iron Co. v. Walker, 43 N. Y. Supr. Ct., 275 ; 76 N. Y., 524 .

The answer served does not show that the note when the action was commenced was not due.

We must assume that it was and, therefore, order appealed from must be affirmed, with costs.

Ehrlich, Ch. J., and Newburger, J., concur.