Appellate Terms of the Supreme Court of New York, 1913

Gamage v. Llewellyn

Appellate Terms of the Supreme Court of New York · Decided February 7, 1913 · Seabury

139 N.Y.S. 936 (New York Supplement)

Counsel

Emile Schultze, of New York City (John R. Halsey, of New York City, of counsel), for appellant., Simpson & Simpson, of New York City (Robert M. Simpson, of New York City, of counsel), for respondent.

Opinion of the Court

SEABURY, J.

The plaintiff sued upon a written instrument under seal, a copy of'which was annexed to the complaint; wherein the defendant agreed to pay to the order of the plaintiff certain sums of money on specified dates as the purchase price of certain shares of stock. The plaintiff’s cause of action was entirely predicated upon this written instrument. The plaintiff offered the instrument in evidence, and, upon the objection of the defendant, it was excluded, subject to the plaintiff’s exception.

The reason for its exclusion seems to have been that it was de*937scribed in the complaint as a promissory note. The manner in which it was characterized in the complaint is immaterial. It was a written agreement, under the terms of which the plaintiff’s cause of action arose. As such, it should have been received in evidence. The agreement itself contains all the elements necessary to constitute a promissory note. It follows that the instrument was improperly excluded, and that the court below erred in dismissing the complaint.

Judgment reversed, and a new trial ordered, with costs to the appellant to abide the event. All concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.