Gamage v. Llewellyn

Appellate Terms of the Supreme Court of New York

Gamage v. Llewellyn

139 N.Y.S. 936

CourtAppellate Terms of the Supreme Court of New York

DecidedFebruary 7, 1913

StatusPublished

This text of 139 N.Y.S. 936 (Gamage v. Llewellyn) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gamage v. Llewellyn, 139 N.Y.S. 936 (N.Y. Ct. App. 1913).

Pincite

Opinion

SEABURY, J.

The plaintiff sued upon a written instrument under seal, a copy of'which was annexed to the complaint; wherein the defendant agreed to pay to the order of the plaintiff certain sums of money on specified dates as the purchase price of certain shares of stock. The plaintiff’s cause of action was entirely predicated upon this written instrument. The plaintiff offered the instrument in evidence, and, upon the objection of the defendant, it was excluded, subject to the plaintiff’s exception.

The reason for its exclusion seems to have been that it was de[937]*937scribed in the complaint as a promissory note. The manner in which it was characterized in the complaint is immaterial. It was a written agreement, under the terms of which the plaintiff’s cause of action arose. As such, it should have been received in evidence. The agreement itself contains all the elements necessary to constitute a promissory note. It follows that the instrument was improperly excluded, and that the court below erred in dismissing the complaint.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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SEABURY, J.

The plaintiff sued upon a written instrument under seal, a copy of'which was annexed to the complaint; wherein the defendant agreed to pay to the order of the plaintiff certain sums of money on specified dates as the purchase price of certain shares of stock. The plaintiff’s cause of action was entirely predicated upon this written instrument. The plaintiff offered the instrument in evidence, and, upon the objection of the defendant, it was excluded, subject to the plaintiff’s exception.

The reason for its exclusion seems to have been that it was de[937]*937scribed in the complaint as a promissory note. The manner in which it was characterized in the complaint is immaterial. It was a written agreement, under the terms of which the plaintiff’s cause of action arose. As such, it should have been received in evidence. The agreement itself contains all the elements necessary to constitute a promissory note. It follows that the instrument was improperly excluded, and that the court below erred in dismissing the complaint.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

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Bluebook (online)

139 N.Y.S. 936, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gamage-v-llewellyn-nyappterm-1913.