Esselstyn v. Weeks
New York Court of Common Pleas
This action was brought in 1851, against, the defendant, as the maker of a promissory note, dated in 1841, and payable on demand. The complaint contained only the ordinary averments, alleging the execution and terms of the note, and a demand and refusal of payment. The defendant pleaded payment and the statute of limitations. The plaintiff replied, denying payment, and averring that the cause of action did accrue within six years.
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This action was brought in 1851, against, the defendant, as the maker of a promissory note, dated in 1841, and payable on demand. The complaint contained only the ordinary averments, alleging the execution and terms of the note, and a demand and refusal of payment. The defendant pleaded payment and the statute of limitations. The plaintiff replied, denying payment, and averring that the cause of action did accrue within six years. On the trial the plaintiff proved that in September, 1848, two months after the Code of Procedure went into operation, the note was presented to the defendant, who…
1Opinion of the Court
Ingraham, First J.
This action is on a promissory note, payable on demand; dated 29th June, 1841.
The defendant answers that the action did not accrue within six years, and also avers payment; and the plaintiff replies that the action did accrue within six years, and denies payment.
Under the pleadings, proof of a new promise sustains the *118issue. It is not necessary that the plaintiff should reply a new promise. The allegation that the action did not accrue within six years is denied by the reply, and" proof of the promise sustains the plaintiff’s averment. Such was the law before the Code, and…
2Cases cited6 opinions
- McCormick v. BarnumNew York Supreme Court · 1833
- Wenman v. Mohawk InsuranceNew York Supreme Court · 1835
- Wadsworth v. ThomasNew York Supreme Court · 1849
- Shippey v. HendersonNew York Supreme Court · 1817
- Van Rensselaer v. LivingstonNew York Supreme Court · 1834
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