Hardon v. Ongley Electric Co.

35 N.Y.S. 405, 89 Hun 487, 96 N.Y. Sup. Ct. 487, 69 N.Y. St. Rep. 791

• Court: New York Supreme Court
• Decided: October 18, 1895
• Status: Published

Opinion

PER CURIAM.

This action was begun October 8, 1894, to recover the amount of a promissory note, of which the following is a copy:

$22,783 33/100.

New York, November 1st, 1892.

Two years after date, we promise to pay to the order of Thomas W. Robertson twenty-two thousand seven hundred and eighty-three 33/100 dollars, at No. 1 Broadway, New York City.

Value received.

No.-.

with interest at 5%, payable semiannually.

Due Nov. 4th, 1894.

The Ongley Electric Go.,

By Geo. B. Hopkins,

Vice President.

It is alleged that, by a written contract entered into between the parties to the note on the day of its date, it was agreed “that in case default should be made in the payment of the said principal sum above mentioned, or in the payment of the interest thereon, or in case the said defendant should at any time before the day of payment therein provided for, to wit, November 4, 1894, permit or suffer any attachment or other process against property to be issued against it, * * * then the said principal sum above mentioned should become instantly due and payable. * *” It is further alleged that the interest on the note which became due May 1,1893, November 1, 1893, and May 1, 1894, has not been paid, and that on March 21, 1893, an attachment was issued out of the supreme court of this state, in an action brought by John F. Wiechers against the defendant under which the defendant’s property has been seized, and now remains subject to the lien of the attachment.

The defendant demurs on the following grounds: (1) That there is another action pending between the same parties, for the same cause. (2) That the complaint does not state facts sufficient to constitute a cause of action. (3) That causes of action have been improperly united in a single count; one cause claiming the principal of the note sued upon due because of the issuance of an attachment against the property of the defendant, and the second cause of action claiming the principal of the note due because of a default in the payment of interest.

In respect to the first ground of demurrer, it is only necessary to say that it does not appear on the face of the complaint that another action is pending between the parties for the same cause of action.

The third ground of demurrer is not well taken. There is but a single cause of action stated in the complaint, which is on the note; and the fact that it has become due by reason of two defaults—the nonpayment of interest and suffering of an attachment—does not constitute two causes of action. The principal of bonds and mortgages often becomes due by breach- of covenants to pay interest and to insure; and it has never before, we think, been argued that an action to foreclose the mortgage, or to recover on the bond, in which a breach of both covenants is set forth, improperly joins two independent causes of action.

The learned counsel for the demurrant, in support of the second ground of demurrer, urges that the covenants in respect to the nonpayment of interest and suffering an attachment are contained in a chattel mortgage given as collateral to the note, and that it simply gives the plaintiff the right to foreclose the mortgage, but not to sue on the note. The answer to this is that it does not appear that these covenants are contained in a chattel mortgage. Hiere is no allusion to a chattel mortgage in the complaint, and the facts upon which the appellant founds his argument are not in the record. The judgment should be affirmed, with costs, with leave to defendant to answer upon payment of costs.