Van Hoesen v. Van Alstyne

3 Wend. 75 | N.Y. Sup. Ct. | 1829

By the Court,

Savage, Ch. J.

Justice seems to have been done in this case, and it is to be regretted that it was not done secundem artem. The thirty eighth section of the act of 1824 directs the common pleas, upon appeal, to render judgment as the very right of the case shall appear, without regard to the previous trial had thereon ; and they are required to construe the pleadings with a view to substantial justice between the parties : but that has been adjudged to mean justice according to law. It is true, that the pleadings in justices’ courts are viewed with great liberality; but the parties before the justice may object to the pleadings, and then the rules applicable in other courts must govern. The replication here is bad for duplicity. A replication may traverse as many facts in the plea as constitute one point; but here the plaintiff tenders an issue to the country upon one distinct fact, and then avers certain other facts in answer to another part of the plea, and concludes with a verification. It is said the plea is bad ; bat if so, it is bad only in form not in substance. I am therefore of opinion that the justice and the common pleas both erred in overruling the demurrer.

The common pleas also erred in not deciding the questions raised on the trial; as they were pertinent. They erred, also, in directing the jury to pass upon the sufficiency of the notice. That is a question of law were the facts are conceded and should have been decided by the court. (Sice v. Cunningham, 1 Cowen, 408.) The note having been transferred long after it was due, is to be considered as a note payable on demand; and the demand and notice must be made in a reasonable time. What is a reasonable time, depends on the circumstances of the case. From the remark of the defendant below, that Cooley would get into business again and pay, it is evident an immediate demand and notice was not contemplated. The demand was in fact made within a few weeks, and notice given within two or three months. I am inclined to think this was sufficient, under the circumstances of the case, to charge the endorser. The result is right, but the means by which that result was obtained were erroneous. The judgment, therefore, must be reversed, and a venire de novo awarded to Columbia common pleas.