Strauss v. Sage — 62 N.Y. St. Rep. 520

Majority

p. 520

Lazarus Strauss et al., App’lts, v. Warren Sage, Impleaded, etc., Resp’t.

(New York Common Pleas, General Term,

Filed November 5, 1894.)

Headnote

Evidence—Presumption—Bills and notes.

In the absence of an allegation from which it will appear that the debt, of which the note is evidence, was contracted at a time anterior to the note, it must be assumed that the debt was contracted simultaneously with the giving of the note.

Appeal from an interlocutory judgment which sustained a demurrer to the complaint. Action to enforce the liability of a trustee, or directo!, of a corporation organized under the provisions of chapter 267 of the Laws of 1875. The facts appear from the opinion.

Taylor, Thompson & Kaufman {Daniel G. Thompson, of counsel), for app’lts; Strong, Ilarmon & Hathewson {Theron G. Strong, of counsel), for resp’t.

The action is brought upon the promissory note of the Manhattan Athletic Club, a corporation organized under chapter 267 of the Laws of 1875, dated October 10, 1892, and payable to the order of the plaintiffs four months after date, to enforce the liability of the defendant-respondent as a trustee of

p. 521

the club', under the following provisions of the act above mentioned, to wit: “ See. 8.' The trustees, directors -or managers of any society or corporation organized under the provisions of this act, shall be jointly or severally liable for all the debts due from said society or corporation, 'contracted while they are trustees; provided said debts are payable one year from the time they shall have been contracted; and provided a suit for the collection of the same shall be brought within one year after the debt shall become due and payable.” The action was commenced within one year from the date of the note, but the complaint does not specifically state when the debt, for which the note was given, was contracted, and because of the omission the defendant-respondent demurred thereto for insufficiency. At special term the demurrer was sustained. '

On behalf of the defendant-respondent it is contended that the note is but evidence of a debt, and that, because of the omission to state when the debt was contracted, or that the debt was contracted within the year immediately preceding the commencement of the action, the complaint is defective, it not appearing therefrom that the debt is one for which the trustee is made liable. "We accede to the proposition that the note is evidence merely of a debt, but in the absence of an allegation from which it will appear that the debt, of which the note is evidence, was contracted at a time anterior to the note, it must be assumed that the debt was contracted simultaneously with the giving of the note. No presumption is allowable that the note- was given for an antecedent debt In this aspect of the complaint the facts predicatory to a sufficient cause of action are apparent. It remains for the defendant-respondent, if he intends to avail himself of the defense, to interpose the objections that the action was not brought within one year after the debt, was due and payable, or that the debt was not payable one year from the time it was contracted, by answer. The point was ruled in Metzger v. Carr et al., 61 St. Rep. 14 .

The judgment of the special term is reversed, and the demurrer overruled. Defendant should have leave to answer upon payment of costs of the demurrer and of this appeal.

Bookstaver, P. J., and Pryor, J., concur.