155 N.Y.S. 934 | N.Y. App. Div. | 1915
These two actions were tried together and the defendant’s appeals are united. The plaintiff, assignee of the Pioneer Iron Works, payee, brought the actions upon as many promissory notes of the defendant. The Trial Term, upon motion of the plaintiff, struck out the parts of the answers that set up separate and distinct defenses, tried the issue — as to the assign
The appellant contends that the notes were given upon a condition precedent. The said Pioneer Iron Works and the defendant made a contract whereby the Pioneer Iron Works was to construct and to set up certain machinery for an asphalt plant for the defendant. There was a time limit in the contract and a provision for a penalty of $20 a day for delay, conditioned that the defendant would not delay the construction of the brick work and foundations and that the said time limit should exclude inclement weather. There were to be four payments, one-fourth at the time of the order, one-fourth .when the principal parts were delivered and the remainder by notes at sixty and ninety days, to have a good indorser, to be • delivered at the time of the said second payment. The first note sued upon was a renewal of one of the said notes after a cash payment of $850, and the second note sued upon was the original note for 90 days. There is no plea in the defenses that the notes were non-negotiable or were not immediately available. The learned counsel for the appellant cites Smith v. Dotterweich (200 N. Y. 299) and Blewitt v. Boorum (142 id. 357). But I think that this case falls within the “converse of this rule,” referred to in Smith v. Dotterweich (supra), of which the court in that case said Jamestown Business College Assn. v. Allen (172 N. Y. 291) was “a salient illustration,” inasmuch as the notes in the case at bar were “rendered effective and complete by an unconditional delivery,” and the plea is that the payee was to release the maker and to cancel the note provided the contract was
It is further contended that the court was powerless to strike out the defenses. Smith v. Countryman (30 N. Y. 655) and Moss v. Witteman (4 Misc. Rep. 81), cited by the appellant, so far as the practice in this case is concerned, would seem to be overruled by Ampersand Hotel Co. v. Home Ins. Co. (198 N. Y. 495), wherein the respondent cited both Smith’s Case (supra) and Moss’ Case (supra).
The judgments and orders must be affirmed, with costs.
Thomas, Stapleton, Mills and Putnam, JJ., concurred.
Judgments and orders affirmed, with costs.