Abramowitz v. Abramowitz

City of New York Municipal Court

Abramowitz v. Abramowitz

113 N.Y.S. 798

DecidedNovember 28, 1908

StatusPublished

This text of 113 N.Y.S. 798 (Abramowitz v. Abramowitz) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Abramowitz v. Abramowitz, 113 N.Y.S. 798 (N.Y. Super. Ct. 1908).

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Opinion

DELEHANTY, J.

In my opinion the complaint herein fails to state facts sufficient to constitute a cause of action, and defendant is entitled to a judgment of dismissal upon the merits in pursuance of section 547, Code Civ. Proc., added by Laws 1908, p. 462, c. 166. The liability of an indorser of commercial paper cannot be enlarged beyond that imposed upon him by statute. Where one indorses a note in blank, he warrants to all subsequent holders in due course that he will pay the note to the holder, on receiving due notice that the maker, upon demand made at the proper time, has neglected to pay it. Section 116, Neg. Inst. Law (Laws 1897, p. 734, c. 612). That is all that the defendant in this case did. The maker of the note and the holder thereof is the plaintiff himself, and it.is quite apparent that he is in no position to maintain this action. If, as claimed, the plaintiff is but an accommodation maker of the note in question for the benefit of the defendant indorser, whose proper debt it is to pay, the plaintiff has his remedy in an action for money paid, wherein he will be able to show that he made the note for the accommodation of the indorser.

Motion granted, with $10 costs. Settle order on notice.

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DELEHANTY, J.

In my opinion the complaint herein fails to state facts sufficient to constitute a cause of action, and defendant is entitled to a judgment of dismissal upon the merits in pursuance of section 547, Code Civ. Proc., added by Laws 1908, p. 462, c. 166. The liability of an indorser of commercial paper cannot be enlarged beyond that imposed upon him by statute. Where one indorses a note in blank, he warrants to all subsequent holders in due course that he will pay the note to the holder, on receiving due notice that the maker, upon demand made at the proper time, has neglected to pay it. Section 116, Neg. Inst. Law (Laws 1897, p. 734, c. 612). That is all that the defendant in this case did. The maker of the note and the holder thereof is the plaintiff himself, and it.is quite apparent that he is in no position to maintain this action. If, as claimed, the plaintiff is but an accommodation maker of the note in question for the benefit of the defendant indorser, whose proper debt it is to pay, the plaintiff has his remedy in an action for money paid, wherein he will be able to show that he made the note for the accommodation of the indorser.

Motion granted, with $10 costs. Settle order on notice.

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Bluebook (online)

113 N.Y.S. 798, Counsel Stack Legal Research, https://law.counselstack.com/opinion/abramowitz-v-abramowitz-nynyccityct-1908.