Packard v. Long Island Railroad

52 Misc. 98, 101 N.Y.S. 660

• Court: Appellate Terms of the Supreme Court of New York
• Decided: December 15, 1906
• Status: Published

Opinion

Fitzgerald, J.

This appeal is from an order amending an order overruling a demurrer to the complaint and also from the interlocutory judgment entered upon the last named order. The order amending the order overruling the demurrer was entered upon the defendant’s motion and the appeal therefrom must be dismissed. The demurrer to the complaint was well taken and should have been sustained. Briefly, the complaint averred that, in June, 1906, the August Eoesler Company gave to plaintiffs a promissory note for value, in the sum of $1,000, due on or before July 25, 1906. At the timo this note was given to plaintiffs the defendant owed the Eoesler Company upward of $5,000 for work done for it by the Eoesler Company. To secure the payment of this note the Eoesler Company assigned to plaintiffs all the moneys due it from the defendant. Defendant was notified of this assignment on .July 13, 1906. On July 25, 1906, payment of the note was demanded of the Eoesler Company; but, the same not being paid, suit without demand for payment upon or notice to the defendant was begun. No demand for payment is alleged in the complaint. It is not claimed that the assignment to the plaintiffs by the Eoesler Company of the sum due from defendant was an absolute assignment, creating immediately an absolute liability on the part of defendant; but the same was given as security, merely, for payment of the note. Notice of such assignment created at most but a contingent liability on the part of the defendant, and such liability depended on whether or not the note was paid. The note was uncertain as to its due date, and, therefore, the knowledge as to when the plaintiffs exacted payment or when demand therefor and default was made was peculiarly within the knowledge of the plaintiffs; and, before payment could be exacted of the defendant, demand for payment upon it should first have been made. This is in accordance with the rule that, when the fact upon which the defendant’s liability depends is within the plaintiff’s knowledge, notice should be given to the defendant before bringing the action. Cole v. Jessup, 2 Barb. 309; Bunn v. Lett, 65 Hun, 43; Wangler v Swift, 90 N. Y. 38.

Appeal from order dismissed, with fen dollars costs.

Interlocutory judgment reversed and demurrer sustained, with costs, and plaintiffs allowed to amend the complaint within six days, upon payment of costs less the ten dollars costs imposed upon dismissal of appeal from order.

Gildersleeve and Davis, JJ., concur.

Appeal from order dismissed, with ten dollars costs. Interlocutory judgment reversed and demurrer sustained, with costs, and plaintiffs allowed to amend complaint within six days, upon payment of costs less ten dollar’s costs imposed upon dismissal of appeal from order.