Furguson v. United States Land & Investment Co.

11 N.Y.S. 738, 33 N.Y. St. Rep. 425, 1890 N.Y. Misc. LEXIS 2337

• Court: City of New York Municipal Court
• Decided: October 8, 1890
• Status: Published

Opinion

Per Curiam.

The action is upon a bond issued by the defendant, and on certain coupons attached thereto. The coupons were past due, but the bond did not become due till July 1,1894. There is a special condition expressed in the bond that if default shall be made in the payment of the interest, and continues for 90 days after it becomes due and payable, and has been duly demanded, that, at the option of the holder thereof, the principal sum of the said bond, with all arrearage of interest, shall become due and payable immediately thereafter. The action being upon the bond, as well as the coupons, it was necessary, in order to recover upon the bond, to prove that the interest due upon the bond had been demanded 90 days prior to suit brought, and if this point had been specifically taken at the trial term, it would have been error for the trial judge to have refused a dismissal of the complaint as to the principal obligation. But the attention of the trial judge was not specifically called to this feature of the case, nor to the defect in the proof respecting it. The motion to dismiss was upon the general ground that the plaintiff failed to prove his cause of action. This general objection is not sufficiently explicit to enable the defendant, upon this appeal, to present a specific ground of objection which might, perhaps, have been obviated at the trial if the objection had been pointed out. Falk v. Beeckman, 2 N. Y. Supp. 650; Devoe v. Brandt, 58 Barb. 493; Newton v. Harris, 6 N. Y. 345; Binsse v. Wood, 37 N. Y. 526; Jencks v. Smith, 1 N. Y. 90; Lewis v. Ryder, 13 Abb. Pr. 1. For these reasons it.was not error to refuse to dismiss the complaint, and, as we have failed to discover any other objection that requires comment, it follows that the judgment appealed from must be affirmed, with costs.