
    Lazarus Straus et al., Appellants, v. Warren Sage, Impleaded, Respondent.
    New York Common Pleas
    General Term,
    November, 1894.)
    A complaint in an action to enforce the liability of a trustee of a club organized under chapter 267, Laws of 1875, upon a note given by such club, is sufficient although it does not specifically state when the debt for which the note was given was contracted; in such a case it must be assumed that the debt was contracted simultaneously with the giving of the note.
    Appeal from an interlocutory judgment which sustained a demurrer to the complaint.
    Action to enforce the liability of a trustee or director of a corporation organized under the provisions of chapter 267 of the Laws of 1875. The facts appear from the opinion.,
    
      Dwniél G. Thompson, for appellants.
    
      Theron G. Strong, for respondent.
   Bisohoee, J.

The action is brought upon the promissory note of the Manhattan Athletic Club, a corporation organized under chapter 267 of the Laws of 1875, dated October 10, 1892, and payable to the order of the. plaintiffs four months after date, to enforce the liability of the defendant-respondent as a trustee of the club under the following provisions of the act above mentioned, to wit: Sec. 8. The trustees, directors or managers of any society or corporation organized under the provisions of this act shall be jointly or severally liable for all debts due from said society or corporation contracted while they are trustees, provided said debts are payable one year from the time they shall have been contracted, and provided a suit for the collection of the same shall be brought within one year after the debt shall become due and payable.” The action was commenced within one year from the date of the note, but the complaint does not specifically state when the debt for which the nóte was given was contracted, and because of the omission the defendant-respondent demurred thereto for insufficiency. At Special Term the demurrer was sustained.

On hehalf of the defendant-respondent it is contended that the note is but evidence of a debt, and that, because of the omission to state when the debt was contracted, or that the debt was contracted within the year immediately preceding the commencement of the action, the complaint is defective, it not appearing therefrom that the debt is one for which the trustee is made liable. We accede to the proposition that the note is evidence merely of a debt, but, in the absence of an allegation from which it will appear that the debt, of which the note is evidence, was contracted at a time anterior to the note, it must be assumed that the debt was contracted simultaneously with the giving of the note. ISTo presumption is allowable that the note was given for an antecedent debt. In this aspect of the complaint the facts predicatory to a sufficient cause of action are apparent. It remains for the defendant-respondent, if he intends to avail himself of the defense, to interpose the objections that the action was not brought within one year after the debt was due and payable, or that the debt was not payable one year from the time it was contracted, by answer. The point was ruled in Metzger v. Carr, 61 N. Y. St. Repr. 14.

The judgment of the Special Term is reversed and the demurrer overruled. Defendant should have leave to answer upon payment of costs of the demurrer and of this appeal.

Bookstaver and Pryor, JJ., concur.

Judgment reversed and demurrer overruled, with leave to defendant to answer on payment of costs of demurrer and appeal.  