Payne v. Lansing

2 Wend. 525 | N.Y. Sup. Ct. | 1829

By the Court, Sutherland, J.

The demurrer is well taken. The bill is of the term of October, 1827, and yet it appears on the face ,qf the declaration that the cause of action did not accrue until the 4th day of December thereafter. The promise of the defendant, as stated in the declaration, was, that as. soon as judgment should be obtained in the supreme court against Gerrit Quackenbush upon a certain judgment in the court of common pleas of Washington county in favor of the plaintiff Payne against said Quaclcenbush, he, the defendant, would take an assignment of said judgment, and pay the amount. The plaintiff’s cause of action was not perfect until he had offered to assign this judgment. He accordingly avers a tender of such assignment in both counts of his declaration on the 4th day of December, 1827. His cause of action then accrued, which was two months after the commencement of this suit. This is a fatal objection on general demurrer. (Cheetham v. Lewis, 3 Johns. R. 42. Waring v. Yates, 10 Johns. R. 119.)

Judgment for defendant on demurrer.