Opinion
May 29, 1913.
James R. Sloane, for the appellant.
Edward D. Bryde, for the respondent.
Present — INGRAHAM, P.J., CLARKE, SCOTT, DOWLING and HOTCHKISS, JJ.
Appeal from an order denying defendant's motion, made on additional affidavits, to vacate an attachment.
An inspection of the complaint shows that it states no cause of action, and that the attachment was improvidently granted. The complaint contains thirteen separate counts substantially identical in form, the portions of which material to this appeal are as follows: "That heretofore and on or about the day of Addison Smith made and delivered to one Eliza M. Smith his promissory note in writing, dated on that day, and thereby promised to pay the estate of Eliza M. Smith, upon her death, the sum of dollars." Instruments in the above form are not negotiable. They are payable neither to order nor bearer, nor are they payable at a "determinable future time." (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], §§ 20, 23; Rice v. Rice, 43 App. Div. 458.) It was, therefore, necessary to allege a consideration. ( Deyo v. Thompson, 53 App. Div. 9. ) No such allegation appears.
The order appealed from should be reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.