99 Misc. 260 | N.Y. App. Term. | 1917
The complaint is upon a promissory note reading as follows:
“ $1,600.00. November 13, 1915.
“ Ninety-two (92) days after date I promise to pay to the order of Wallace Novelty Co., Inc., Sixteen Hundred......Dollars, at 66 Broadway, N. Y. City. Value received with interest as per contract of Nov. 12th, 1915.
“ J. B. Graves Ivey.”
(The payee is the plaintiff, its corporate name having been changed after the note was made.)
Also set out is the contract to which the reference upon the note is made. The defendant’s demurrer for insufficiency is predicated upon the theory that the reference to the contract must be construed as a promise to pay in accordance with the terms of that contract, and that the latter is accordingly made part of the note by virtue of the reference to it, and, being such, shows that the note was to be paid out of a particular fund, and that only. From the view we take of the case, it will not be necessary to examine the contract for the purpose of determining whether or not it restricts payment of the note to a stated fund, as, if the mention of the contract be held not to constitute more than a reference to the transaction out of which the note grew, the quality of negotiability is present, and the complaint must be held sufficient. Although the action is by the payee and against the maker, the note not having passed,out of the payee’s hands, the question of negotiability is important for the reason that the only allegation in the complaint as to consideration, namely, that the note was for value received, would not support an action upon a nonnegotiable instrument. Neukirch v. McHugh, 165 App. Div. 406, and cases there cited.
The tendency of the courts is to construe commercial instruments having on them a memorandum or reference to dealings between the parties, as negotiable, if they in other respects have all the characteristics of negotiability. Schmittler v. Simon, supra, 561; Hibbs v. Brown, 190 N. Y. 167. There are many cases in the books where it has been held that additional writings upon a note or bill have destroyed negotiability, but it will be found upon examination that the ruling invariably rested upon a determination that the language there present showed that the maker or drawer clearly intended to charge a specified fund and not to go beyond that. The closest cases we have found are National Bank of Newbury v. Wentworth, supra, and Taylor v. Curry, 109 Mass. 36. In the National Bank of Newbury case the words “as per terms of contract ’ ’ followed the words ‘ ‘ value received ’ ’ at the end of the note. In the Taylor case the note was given by an assured in payment of
Interlocutory judgment reversed, with costs, and demurrer overruled, with costs, with leave to the defendant to withdraw demurrer and answer within six days after service of a copy of the order entered hereon in the City Court and notice of entry thereof and payment of costs in this court and in the court below.
Guy and Philbin, J J., concur.
Interlocutory judgment reversed, with costs.