Hyperlawhypertext legal database Underhill v. Phillips 17 N.Y. Sup. Ct. 591

← Cases

Underhill v. Phillips

17 N.Y. Sup. Ct. 591 Court N.Y. Gen. Term English

Judges Present — Barnard, P. J., Gilbert and Dtktvtan, JJ.

Delivered by Gilbert, J.:

Contents

Majority

p. 591
SILAS A. UNDERHILL, Respondent, v. FRANK H. PHILLIPS, Appellant.

Headnote

Promissory note — complaint in action upon — consideration need, not be alleged.
The omission of the words “for value received,” in a promissory note, is not material.
In an action upon such a note, it is not necessary to allege in the complaint, that there was any consideration therefor.
A description of the note is sufficient without an averment of the consideration.
Appeal from an order of tbe County Court of Kings county, overruling a demurrer to tbe complaint herein.
Tbe action was upon a promissory note. Tbe defendant demurred,
p. 592
on the ground that there was no allegation in the complaint showing any consideration for the note, and because it did not appear therefrom that the note contained any words expressing a consideration.
G. B. Va/n Wa/rt, for the appellant.
If a written contract be defective in its specification, it must be declared on according to its legal effect, and the deficiency supplied by the proper averments. ('Osborn v. La/wrmoe, 9 Wend., 135 ; Ooonl/y v. Anderson, 1 Hill, 519 ; GrammAs v. Olarh, 8 Cow., 35 .)
8. A. Underhill, respondent, in person.
A promissory note imports a consideration, and it is unnecessary to state any in the pleading or to prove any upon the trial in the first instance. (Bank of Troy v. Topping, 13 Wend., 551 ; Goshen Twrnpihe, eta., v. Tlv/rti/n, 9 Johns., 211 ; Sa/wyer v. McTouth, 16 Barb., 350 ; Powers v. French, 1 Hun, 582 .) It was not necessary that the complaint should allege that the note was delivered. (Ohwrohill v. Gardner, 1 Term it., 596; Peets v. Bratt, 6 Barb., 662 ; Keteltas v. Myers, 19 N. Y., 231 .)

The instrument set forth in the complaint is a negotiable promissory note. (1B. S., 168, § 1.) In this State such a note imports a consideration. A description of the instrument is sufficient, without an averment of the consideration. No consideration need be proved on the trial, and none, therefore, need be alleged in the complaint. The omission of the words “ for value received ” in the note, is not material. (1 Chitty’s PL, 293, n. 1; Kimball v. Huntington, 10 Wend., 675 .)

The demurrer was properly overruled. Order affirmed, with costs'.

Present — Barnard, P. J., Gilbert and Dtktvtan, JJ.

Order overruling demurrer affirmed, with costs.