102 N.Y.S. 544 | N.Y. App. Div. | 1907
The defendant demurred to the complaint upon the ground that it did not state facts sufficient to constitute a cause of action. The. demurrer was overruled, and defendant' appeals from-the interlocutory judgment.
One Newman, according to the allegations of the complaint, applied to the- plaintiff for a loan of $5,000-,. upon his promissory-note for that amount, payable four months after date. The plaintiff declined to make the loan without additional security, and there- . upon the bond of the defendant was delivered to the plaintiff and the loan made. The note was not paid when due, was duly protested for non-payment, and this action brought upon the .bond.
The bond is dated the 2-fth' day of October, 1904, is under seal, and recites that Newman, as principal, and-the surety company, as surety, are held and firmly bound to-the plaintiff in the sum of $10,000, payment of which Newman and the surety company bind themselves jointly and severally to make. Then follow these provisions: ■“ Whereas the.said Randolph M. Newman has applied to the Gansevoort Bank of New York for a loan of Five Thousand Dollar's ($5000) upon his promissory note dated this 24th day of October, 1904, and payable four months after date, And Whereas, the said Gansevoort Bank has declined to make said loan upon said note without additional and collateral security therefor, and for the faithful payment of said loan, And Whereas, the Empire State Surety Company, as an inducement to said Gansevoort Bank of New York to make said loan, executes this certain bond or obligation,
“Now, Therefore, the condition of this bond or obligation'is such that if the above bounden Randolph M. Newman shall faithfully discharge and pay the said indebtedness of Five Thousand Dollars ($5000), then and in that event this obligation to be- void and of no effect, otherwise to remain in full -force and virtue.”
A copy of the bond is annexed to and made a part of the com
• The court at Special Term, as appears from the opinion, reached the conclusion that there was no allegation in the complaint that plaintiff loaned $5,000 to Newman ; that that was the- condition of the bond and the allégations-as to the delivery of the note by Newman and acceptance by plaintiff were not equivalent to an allegation that the plaintiff loaned Newman $5,000, for which reason the complaint was defective so far as any attempt was made to set out a common-law averment of performance, but that the 9th paragraph of the complaint might be construed as having alleged performance under section 533 of the Code of Civil Procedure.
I am of the opinion that the 9th paragraph of the complaint does not allege performance under the section of the Code referred to. This section of the Code provides that in pleading the performance of a condition precedent in a contract, it is not necessary to state the facts constituting performance, but the party may state generally that he, or the person whom he represents, has duly performed all the conditions on his part. When the 9th paragraph of this complaint is carefully considered, I am unable to discover where there is any allegation in it that the plaintiff has duly per
This necessarily implies, as it seems to me, that that amount was loaned, and certainly so when this. allegation is taken' in connection with the other-allegation that Hewman had, prior to the commencement of the action, “ wholly failed to discharge and pay the said indebtedness of $5,000.”
The judgment appealed from, therefore, should 'be affirmed, with costs, with leave to the defendant to withdraw the demurrer and interpose an answer on payment of the costs in this court and-in the court below.
Patterson, P. J., Soott and Lambert,- JJ., concurred.; Houghton, , J., dissented.
Judgment affirmed, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs in this court and iff the court below. Order filed.