Underhill v. Phillips

Decided May 15, 1877

New York Supreme Court · decided 1877-05-15

Tbe action was upon a promissory note. Tbe defendant demurred, on the ground that there was no allegation in the complaint showing any consideration for the note, and because it did not appear therefrom that the note contained any words expressing a consideration. If a written contract be defective in its specification, it must be declared on according to its legal effect, and the deficiency supplied by the proper averments.

Decided 1877-05-15

Gilbert, J.:

¶1The instrument set forth in the complaint is a negotiable promissory note. (1B. S., 168, § 1.) In this State such a note imports a consideration. A description of the instrument is sufficient, without an averment of the consideration. No consideration need be proved on the trial, and none, therefore, need be alleged in the complaint. The omission of the words “ for value received ” in the note, is not material. (1 Chitty’s PL, 293, n. 1; Kimball v. Huntington, 10 Wend., 675.)

¶2The demurrer was properly overruled. Order affirmed, with costs'.

Present — Barnard, P. J., Gilbert and Dtktvtan, JJ.

¶3Order overruling demurrer affirmed, with costs.