Legal Opinion

Mallory v. Lamphear

New York Supreme Court

Decided November 15, 1853PublishedCited by 3 opinions

The action was upon a due bill made to the plaintiff or bearer, dated June 6, 1846, payable immediately, for $67,32. The answer admitted the note, but set up as new matter in defence, that, “ the note of due bill was not made within six years next before the commencement of the action.”

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The action was upon a due bill made to the plaintiff or bearer, dated June 6, 1846, payable immediately, for $67,32. The answer admitted the note, but set up as new matter in defence, that, “ the note of due bill was not made within six years next before the commencement of the action.” The ’ cause was tried by the court without the jury.' The suit was commenced in July or August, 1853. No proof was offered on either side except the production of the note and the computation of interest.

1Opinion of the Court

Johnson, Justice.

The answer tenders no issue upon the time of the defendant’s promise and undertaking, or the accruing of the plaintiff’s cause of action, and none is formed by the pleadings.

The due bill or note took effect from the time of its delivery, and the cause of action then accrued. The time when it was made is wholly immaterial, and if the fact is to be regarded as in issue, the issue is immaterial. Swift agt. Vaughn, (6 Hill, 488.) It is obvious enough that thjs action was not commenced until after the expiration of six years, from the date of the *492note. But that is of no avail to…

2Cited by3 opinions

  1. Bacon v. ChapmanAppellate Division of the Supreme Court of the State of New York · 1903
  2. Bullard v. LopezNew Mexico Supreme Court · 1895
  3. Hennequin v. ClewsThe Superior Court of New York City · 1880

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