Frankel v. Kessler

In this action to recover a balance due on a promissory note payable in installments, defendants moved to dismiss the complaint on the ground that it fails to state facts sufficient to constitute a cause of action, pursuant to rule 106 of the Rules of Civil Practice, in that the complaint does not allege consideration, contending that a clause contained in the note to the effect that the entire balance of the note becomes due and payable upon default in payment of any installment of principal or interest, rendered the note nonnegotiable. Defendants appeal from the order of the County Court, Rockland County, denying the said motion. Order affirmed, with $10 costs and disbursements, upon the authority of Enoch v. Brandon (249 N. Y. 263) and Chicago Railway Go. v. Merchants’ Bank (136 U. S. 268), with leave to defendants to serve an answer within ten days after the making of an order hereon. Adel, Acting P.J., Wenzel, MaeCrate, Schmidt and Beldock, JJ., concur.