64 Misc. 2d 1091 | N.Y. Sup. Ct. | 1970
Defendant moves to dismiss the complaint on the ground that the cause of action is time-barred. The defense of the Statute of Limitations (CPLR 213) was affirmatively pleaded in the answer. The complaint states a cause of action in contract.
The motion must be granted.
The plaintiff is not seeking to recover the value of the goods sold and delivered to the defendant between April 1, 1960 and
The letter of November 9, 1964, in pertinent part, says: “ I feel very badly that I have neglected this bill but my intentions were to straighten it up when I received some money from the people that took over the factory. As I am sure you know by now, I never received anything. I have had some financial problems since I have been down here but will make every effort to clear this up in the forthcoming year. I will send a payment in the end of January and try to send a monthly payment after that until I clear up the balance.”
Does the writing satisfy the requirements of section 5-1105 of the General Obligations Law? The consideration is past and executed. It is satisfactorily proved that the consideration was performed on the part of the plaintiff and would be a valid consideration but for the time when it was given or performed. The question is whether the November 9 writing “ expresses ” the consideration. Literally, the verb “ express ” means exact, precise; to state directly and distinctly. Clearly, the reference in the November 9 letter to the consideration does not satisfy these rigid requirements. The verbiage, “I will send a payment in the end of January and try to send a monthly payment after that until I clear it up ”, is vague, inexact and totally without meaning or comprehension unless resort is had to evidence extrinsic to the instrument in question. Further, the language used by defendant could refer to any debt or obligation that might exist between the parties. Even if the verb ‘‘ express ’ ’ should be loosely considered a synonym of “ describe ”, the writing is wanting in detail sufficient to even create an image of the consideration
The motion to dismiss the complaint pursuant to paragraph 5 of subdivision (a) of CPLB 3211 is granted.
(See Commentary by Professor Semerad, McKinney’s Cons. Laws of N. Y., Book 23A, General Obligations Law, p. 475.)