19 N.Y.S. 728 | N.Y. Sup. Ct. | 1892
The number of frivolous and untenable objections raised upon this appeal for the purpose of overturning the judgment clearly indicate to us, as they did undoubtedly to the learned trial judge, that the defenses interposed were without merit, and the object sought delay. We regret, under these circumstances, to be obliged to interfere with the judgment. But one question is presented, which, though to some extent technical, can be made available in obtaining a further delay, which apparently is the object sought by the defendant. From the facts, it appears that the defendant owned the premises on the corner of Rutger’s slip and Cherry street. Plaintiff was a builder, and had a contract for the erection of a building on the premises, with a bond and mortgage to secure the payment for the work and
It will be noticed that in the covenant referred to it was, in effect, agreed that, if Bunn should negotiate a sale of the bond and mortgage, should he find it necessary to do so, he had the right to allow a discount not exceeding 10 per cent., and $100 for searching the title, “which discount and expense is to be paid by said Lett on demand.” There was no demand alleged in the complaint, nor proven upon the trial. It is true that proof was furnished that a demand was made for the $10,000 mortgage debt, but there is no evidence that any demand was made after the sale of the bond and mortgage for the $1,047.50. Upon the close of plaintiff’s testimony, a motion was made to dismiss the complaint upon the express ground of the absence of such an allegation of demand in the complaint and proof upon the trial, which being overruled, an exception was taken. The question therefore presented is, was a demand necessary to be alleged and proved ? It is difficult to formulate a fixed rule for determining when a demand is and when it is not necessary as a condition precedent to maintaining an action. In respect to all instruments or agreements for the payment of a specific sum at a particular place or upon demand, it has been held that the commencement of the suit is itself a sufficient demand; that in such cases a demand is not a condition precedent to a right of recovery. As stated in Locklin v. Moore, 57 N. Y. 362: “The only benefit the defendant could get from the specification of the payment at a particular place is that, if he was ready there to pay, and kept ready, he could set that fact up in his answer, and then pay the money into court, and allege such payment in his answer, and thus shield himself from all liability for interest and costs." This case states the rule as follows: “It is the settled law of this state, announced in many decisions, that when a specific sum of money is made payable by the agreement of the parties upon demand, or at a specified time at a particular place, as against the original debtor, no demand at the time or place, prior to the commencement of the suit, is necessary. The commencement of the suit is itself a sufficient demand.” Locklin v. Moore, 57 N. Y., at p. 362, citing Wolcott v. Van Santvoord, 17 Johns. 248;
As stated in the American and English Encyclopaedia of Law, (volume 5, p. 527:) “It is necessary that a demand be made upon the party who is bound to discharge the obligation or perform the contract, unless, indeed, such party ' has incapacitated himself to discharge the one or perform the other.” And again, (page 528;) “ Whenever the fact by which the defendant’s liability is incurred lies peculiarly within the knowledge and the privity of the plaintiff, notice thereof must be given to the defendant.” Had it not been necessary for the plaintiff to sell the bond and mortgage, nothing would have been due from the defendant, assuming that it was paid when by its terms the bond and mortgage became payable. In other words, no liability could arise until the plaintiff exercised his option, and sold upon terms which should not include a loss to the defendant of more than $1,100; but how much less could only be ascertained when the plaintiff had sold the bond and mortgage, and liquidated, the amount. We think that, as no specified amount was to be paid, as no time or place for payment was fixed, under such a contract, when the parties themselves agree that it shall not be payable until after a demand, such circumstances create an obligation, and make it essential, to support the cause of action, that a demand should be alleged in the complaint, and proved upon-the trial. We are of opinion, therefore, that the failure to allege and prove such demand was fatal to plaintiff’s right to a recovery, and that the judgment, solely upon that ground, must be reversed, and a new trial ordered, with costs to appellant to abide the event. All concur.