
    Marguerite Gilbert, Appellant, v. Isabella V. Adams, Respondent.
    First Department,
    November 17, 1911.
    Bills and notes — non-negotiable promissory note payable upon demand — defenses.
    A dated writing whereby the signer acknowledges an indebtedness to a specified person for services rendered for which she promises to pay a specified sum and further stating “ in the event of my death I hereby authorize and direct the payment of the. same out of the funds of iny estate ” is a promissory note payable upon demand.
    The direction for the payment out of the estate is mere surplusage ánd does not postpone the time of payment until the death of the maker. Such instrument while a promissory note is non-negotiable, and hence all defenses are available.
    Appeal by the plaintiff, Marguerite Gilbert, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the. clerk of the county of New York on the 14th day of December, 1909, upon the dismissal of the complaint by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term.
    
      Clifford C. Roberts, for the appellant.
    
      Charles W. Zaring, for the respondent.
   Clarke, J.:

The complaint alleges: That heretofore and at the Borough of Manhattan, City of New York, on or about the 23rd day of January, 1907, the defendant for value made, executed and delivered to the plaintiff her certain written instrument, or promissory note, of which the following is a copy, ¿viz., CI, Isabella V. Adams, hereby acknowledge my indebtedness to Marguerite Gilbert for services rendered by her, for which I promise to pay her the sum of Thirty thousand dollars;, and in the event of my death I hereby authorize and direct the payment of the same out of the funds of my estate. Dated January 23rd, 1907. (Signed) Isabella Y. Adams.’ That although duly demanded from the defendant, no part of the same has been paid and there is due and owing on the said instrument or promissory note, the whole amount thereof with interest from May 19th, 1908.” • «

The record shows that a jury was impanelled and then proceeds: “The defendant, the maker of the note sued on, was present at the trial. The court proceeded to take the evidence of the respective parties. After each side had rested the following motion was made: Mr. Zaring: I move to dismiss the complaint upon the ground that it. appears on the face of this instrument that it was not payable until after death. The court: Then you mean "on the ground that the facts stated in the complaint do not constitute a cause of action ?*-'*! have given some thought to the construction of this instrument, and I am impelled to the conclusion that it is not a demand note. My conclusion is based entirely upon the terms of the note itself without reference to the testimony taken,” and dismissed the complaint. From the judg-. ment entered thereon this appeal is taken, the record disclosing none of the evidence.

In Hegeman v. Moon (131 N. Y. 462) Peckham, J., said: “A written statement that a certain amount of money, is due a payee therein' named, followed by the signature of the maker of the statement, implies that the money .is due from the maker and is an indebtedness from him to the person to whom the money is thus acknowledged to be due." (Kimball v. Huntington, 10 Wend. 675.) The acknowledgment of the indebtedness, and that it is due implies a promise to pay it on demand. It is a promissory note within the statute.” In that case the instrument directed the maker’s executors to pay a specified sum one year after her death. The court proceeded: “ The time when the money is to be payable is, however, altered by the direction given to her executor to pay it one year from her death. If there were no limitation, an acknowledgment , that the debt was due would imply that it was payable at once or on demand. The direction is, however, in the nature of a promise and expresses a time of payment and, therefore,' excludes the presumption that it is payable immediately, which would otherwise arise from the use of the word due. Being a promissory note it imports a consideration.”'

In Carnwright v. Gray (127 N. Y. 92) the instrument sued on was as follows: “Thirty days, after death I promise to pay to Cornelius Carnwright fifteen hundred dollars, with interest. ” Plaintiff gave no evidence of the transaction out of which the instrument arose and none of the actual consideration thereof, hut having offered testimony tending to prove the genuineness of the maker’s signature, put the note in evidence and rested his case. After citing the statute in regard to promissory notes and a number of cases, Brown, J., said: “No authority is cited in the courts of this State or of England holding that a non-negotiable note is not within the terms of the laws cited, and we are of the opinion that the language of. our statute includes a note payable to a person without words of negotiability. The instrument sued upon being, therefore, a promissory note within the statute of this State, it follows that it imports a consideration. * * * A promissory note is defined- to be a written engagement by one person to pay absolutely and unconditionally, to another person therein named, or to the bearer, a certain sum of money at a specified time or on demand. (Story on Prom. Notes, § 1; Coolidge v. Ruggles, 15 Mass. 387.) ”

The Negotiable Instruments Law (Consol. Laws, chap. 38; Laws of 1909, chap. 43) provides (§ 26): “An instrument is payable on demand: * * * 2. In which' no time for payment is expressed.” (§29) “ The instrument need not follow the language of this chapter but any terms are sufficient which clearly indicate an intention to conform to the requirements hereof.” (See, also, Gen. Laws, chap. 50 [Laws of 1897, chap. 612], §§26, 29.)

I am of the opinion that the instrument at bar is a promissory note, payable upon demand; that the words “ and in the event of my death I hereby authorize and direct the payment of the same out of the funds of my estate ” are surplusage and in no degree affect the preceding statement: “ I promise to pay her the sum of Thirty thousand dollars,” and, therefore, the' time of payment was not postponed until the death of the maker of the note.

•The paper, while a promissory note, was non-negotiable. This suit is between the maker and the payee and all the defenses are available.

The dismissal of the complaint solely upon the ground stated was error and the judgment should be reversed and a new trial ordered, with costs and disbursements to the appellant to abide the event.

Ingraham, P. J., Laughlin, Scott and Miller, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event.  