Opinion
November, 1907.
Dee Donovan (Michael F. Dee, of counsel), for appellant.
V. Philip Mravlag, for respondent.
This is an appeal from an order of the City Court, dismissing the complaint "upon the summons, complaint and answer herein, and upon plaintiff's statement upon the record that the note herein sued upon is lost and that no bond has been given by plaintiff to indemnify defendant," and also denying plaintiff's motion to set aside said dismissal and to grant a new trial, and from the judgment entered upon said order. This action was commenced in October, 1906, and is based on an alleged promissory note, payable on demand, made by defendant in 1898. The answer is a general denial and the Statute of Limitations. It was admitted at the commencement of the trial that the note had been lost and that no bond had been given, as required by section 1917 of the Code, which provides for an undertaking where it appears upon the trial of an action that a negotiable promissory note or bill of exchange, upon which the action or counterclaim is founded, has been lost. The five grounds urged at the trial in support of the motion to dismiss the complaint at the opening of the trial were: 1, The Statute of Limitations; 2, the failure to allege specifically the date of the note, except the year 1898; 3, the failure to allege a demand for payment; 4, the failure to exhibit the note to the maker when demanding payment, and 5, the failure to comply with section 1917 of the Code, as the note was lost. As the note was a demand note the Statute of Limitations began to run immediately. Smith v. Ijams, 70 Hun, 160; affd. on opinion below 141 N.Y. 552. This note, however, though made in 1898, would not be outlawed, if there had been any payment on account within six years, or if the defendant had made any written memorandum of the indebtedness within said period prior to the commencement of the action, or if for any reason the running of the statute had been suspended. The Statute of Limitations is an affirmative defense, which must be pleaded, and a plaintiff is not bound to anticipate a plea of the statute by setting forth in his complaint the payments or memorandum that he intends to rely upon to take the case out of its operation. All that is required is that the complaint state facts sufficient to make out a cause of action; and, if the answer sets up a defense which, if true, would destroy that cause of action, plaintiff may meet it by proof in rebuttal or avoidance. Ramsey v. Barnes, 12 N.Y.S. 726; Metropolitan Life Ins. Co. v. Meeker, 85 N.Y. 614. Where a complaint shows on its face that more than six years have elapsed since the cause of action accrued, and the answer sets up the Statute of Limitations, the burden is on the plaintiff to show, if possible, that the running of the statute has been suspended. Mason v. Henry, 152 N.Y. 529. All this, however, would have been a matter of proof on the trial; and the mere allegation in the complaint as to the making of the note in 1898 and the pleading in the answer of the Statute of Limitations did not furnish cause for the dismissal of the complaint at the opening of the trial, before plaintiff had had an opportunity to present his case. The second ground urged in support of the motion at the trial has, apparently, been abandoned on the appeal; but we will briefly refer to it and point out that the defendant could have moved to make the complaint definite, as it has been the uniform rule that, where the date of an instrument, or a fact upon which the cause of action or defense is based, is not given, the pleading is indefinite in that respect, and, therefore, a motion will lie to make it definite. Pigone v. Lauria, 115 A.D. 286, 288. Apparently, the defendant did not see fit to make such a motion. It may also be observed, as contended by the appellant, that the allegations of the complaint set forth a written promise, for value, to pay money, and the breach of such promise, and even assuming the failure to give the date of such promise in the complaint amounts to a failure to set forth a cause of action on an unpaid negotiable instrument, as contended by respondent, that fact does not furnish ground for the denial of any recovery for such breach of contract and cannot justify a dismissal of the complaint. Moreover the absence of a date on the note would not render it invalid. Neg. Inst. Law, § 25. The third ground in support of the motion, i.e., the failure to allege a demand for payment, was not well taken. Where a note is payable on demand simply, with no qualifying provisions, the word "demand" is not treated as part of the contract, but is used to show that the debt is due. McMullen v. Rafferty, 89 N.Y. 459; Smith v. Ijams, supra. The demand is presumed to have been made at the time of the delivery of the note, at which time the note became payable and the right of action is complete, and a mere provision that the note bears interest does not change the rule. Wheeler v. Warner, 47 N.Y. 519. The failure, therefore, to allege the making of a demand did not furnish ground for a dismissal of the complaint. Furthermore, in answer to the fourth ground urged in support of the motion, it may be said that a demand note is deemed to mature and to become due at the time of delivery by the maker to the payee from whom payment is demanded, i.e., the maker, as required by the statute. Neg. Inst. Law, § 134. There is no merit in the fifth and last contention of the defendant, i.e., that the complaint was properly dismissed for plaintiff's failure to tender a bond of indemnity under section 1917 of the Code, as it is admitted that the note has been lost. It was not necessary that plaintiff should offer indemnity to defendant, under the statute in question, before the action was brought, as that offer could properly be made in the first instance at the trial. Dupignac v. Quick, 27 Misc. 500; Read v. Marine Bank, 136 N.Y. 454. Here it does not appear when the note was lost and at the trial the complaint was dismissed at the very opening of the trial and before any opportunity had been given to plaintiff to furnish such indemnity.
The order dismissing the complaint must be reversed and the judgment entered must be vacated, and a new trial granted, with costs to appellant to abide the event.
Present: GILDERSLEEVE, LEVENTRITT and ERLANGER, JJ.
Order reversed and judgment vacated and new trial granted, with costs to appellant to abide event.