Taylor v. MacLea

11 N.Y.S. 640, 34 N.Y. St. Rep. 61, 19 N.Y. Civ. Proc. R. 429, 1890 N.Y. Misc. LEXIS 2280

Opinion

Per Curiam.

Chief Justice Helson said, in Bayley v. Insurance Co., 6 Hill, at page 479: “As a general rule, a written contract should be set out in pleading according-to its legal effect; but, where the true meaning is doubtful, it is most advisable to set out the contract in hcec verba, and leave the court to construe it.” Citing 1 Chit. Pl. 306, 307; Ross v. Parker, 1 Barn. & C. 358; Moore v. Earl of Plymouth, 3 Barn & Ald. 66,69, 70. Judge Duer, in Fairbanks v. Bloomfield, 2 Duer., at page 353, went further. He said: “The safest course, under the Code, where the action is founded on an instrument in writing, is to annex a copy and refer to it as part of the complaint.” This we hold is good practice. It was followed in the present instance. The contract annexed is clear and explicit, and, by its terms, the money sued for became due and payable as stated in the declaration. The demurrer interposed was clearly frivolous, and was properly overruled. The defendant, instead of appealing from the interlocutory judgment, has appealed from the order only, and, in consequence, we will, instead of affirming the order, dismiss the appeal, with costs. Bank v. Lynch, 76 N. Y. 514; Pardee v. Tilton, 83 N. Y. 624; Smith v. Rathburn, 88 N. Y. 660.