Didato v. Coniglio

Full title: ROSARIO DIDATO, Plaintiff, v . SALVATORE P. CONIGLIO et al., Defendants

Court: Supreme Court, New York Special Term

Date published: Apr 1, 1906

50 Misc. 280 (N.Y. Sup. Ct. 1906)

100 N.Y.S. 466

Opinion

April, 1906.

Edward J. Kelly, for plaintiff.

John W. Russell, for defendants.

BLANCHARD, J.

The complaint sets forth certain instruments, described by the plaintiff as promissory notes, as follows:

"$1,030.00. NEW YORK, , 190.

" pay to the order of Rosario Didato, one thousand and thirty dollars. Value received and charge on account to 38 Stanton street.

"LANSA ROSALIA, "SALVATORE PAMPINELLA."

"$825. NEW YORK, , 190.

" pay to the order of Rosario Didato, eight hundred and twenty-five dollars. Value received and charge on account of to 38 Stanton street.

"ROSALIA CONIGLIO, "S.P. CONIGLIO, "Atty."

These instruments were executed and delivered by the defendants to the plaintiff, and as to each of them the plaintiff declares that "said note was duly presented to defendants for payment, and payment thereof was demanded of defendants, which was refused, and no part of said note has been paid." The defendants demur on the ground that the instruments are not promissory notes, and that the complaint fails to comply with section 534 of the Code of Civil Procedure. The implication is plain from the language of the instruments above quoted that an indebtedness is due from the makers to the plaintiff, and that the makers promised on demand to pay said indebtedness. Hegeman v. Moon, 131 N.Y. 462; Burke v. Ashley, 12 Hun, 637. See also Neg. Inst. Law, § 36. In so far as the plaintiff fails to "state that there is due to him thereon from the adverse party a specified sum which he claims" by virtue of the instruments above quoted, the complaint probably fails to satisfy the requirements of section 534. Keteltas v. Myers, 19 N.Y. 231, 233; Smith v. Fellows, 26 Hun, 384; Oishei v. Craven, 11 Misc. 139. The plaintiff contends, however, that facts have been stated in the complaint sufficient to constitute a cause of action within section 481 of the Code of Civil Procedure. The allegations of the execution by the defendants and of the delivery to the plaintiff of these instruments, and of the demand for payment by the plaintiff, and of nonpayment of any part thereof, sufficiently show that there are due to the plaintiff, by reason of the promises stated in said instruments, and are at present unpaid, the sums mentioned in the complaint. Smith v. Fellows, supra; Oishei v. Craven, supra. The demurrer is therefore overruled.

Demurrer overruled.