Opinion
May 6, 1985
Appeal from the Supreme Court, Dutchess County (Wood, J.).
Order reversed, on the law, with costs, motion granted, and cross motion denied.
The instrument upon which the plaintiffs have sued meets all the requisites of a note (UCC 3-104, [2] [d], [3]; Carnwright v. Gray, 127 N.Y. 92). The fact that payment becomes due upon such an instrument only on the debtor's death does not render it an invalid attempt at a substitute for a testamentary disposition ( Hegeman v. Moon, 131 N.Y. 462) unless the instrument involves a gift without consideration rather than a contract ( McCarthy v. Pieret, 281 N.Y. 407; Matter of Laytin, 149 Misc. 60; cf. Matter of Gallagher, 153 N.Y. 364). The instrument in this case specifically acknowledges the debt and the purposes for which the proceeds of the loan from plaintiffs had been or were to be used, namely upon home improvements. Clearly there was consideration for the decedent's promise to pay embodied in the note.
Since the note was not payable on demand but only by decedent's estate upon her death, the plaintiffs' cause of action accrued, and the Statute of Limitations began to run, on August 1, 1983, the day following her death (UCC 3-122 [a]).
Accordingly, the action was timely commenced in May 1984. Mollen, P.J., Titone, O'Connor and Rubin, JJ., concur.