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In this action to recover the $400 on said paper writing the court held:

"That this instrument was not a bill of exchange, in that it was payable out of a particular fund, and that it was only to be paid if the payments under the contract became due; the instrument not being negotiable and operating only as an equitable assignment of a claim which might or might not become due."

In Lienan v. Lincoln, 2 Duer, 670, the court said:

*

"The complaint is clearly bad. It does not contain a plain and concise statement of the facts constituting a cause of action. * A stranger to this transaction can learn nothing of its precise nature or character from the complaint. The facts which, in judgment of law, create such an indebtedness or liability, should be stated in the complaint. In this complaint no facts are stated. It simply affirms a legal conclusion, without a statement of the facts on which it is founded."

In Gauld v. Lipman, 4 Misc. Rep. 79, 23 N. Y. Supp. 779, the plaintiff's assignor had also given two orders in the sum of $500 each upon the defendant in favor of the plaintiff, "payable when the eleventh payment becomes due and payable according to terms of builder's loan contract on premises on the northeast corner of Ninetieth street and Tenth avenue," on one order, and on the other order, "payable when last payment becomes due and payable" according to the terms of the said contract. The plaintiff in this case failed to prove or allege the terms of the contract, nor when or where or how the installments under these contracts became due. The court in reversing the former appeal in this case said:

"In such a case the party seeking recovery must abide by his contract. In the present instance defendants are liable to plaintiff upon their acceptances to pay when the installments under the building loan agreement have respectively matured. Until the maturity of the installment is shown, the contract of acceptance must be regarded as subsisting and open. Plaintiff could not in this action recover upon the acceptances, because of the rule which requires the recovery to be 'secundum allegata et probata.' Romeyn v. Sickles, 108 N. Y. 650 [15 N. E. 698]."

In Tate v. American Woolen Co., 114 App. Div. 106, 99 N. Y. Supp. 678, Ingraham, J., writing for the court, says:

"There is no fact alleged upon which the alleged indebtedness of the defendant to McManus is based. There is simply an allegation that the defendant was indebted to McManus for money had and received by the defendant from McManus; and the question is whether or not that allegation is a statement of a fact upon which a liability can be based. An allegation of indebtedness is not an allegation of a fact, but of a conclusion of law, which is not admitted by a demurrer, and, therefore, is insufficient to sustain a cause of action. The complaint must set up a plain and concise statement of the facts constituting each cause of action.' Code Civ. Proc. § 481, subd. 2. A conclusion of law is not the statement of a fact upon which a liability can * ** be predicated. The allegation is simply an allegation of indebtedness, and in the absence of a promise to repay, or facts from which such a promise can be inferred, no cause of action is alleged. Sampson v. Grand Rapids School Co., 55 App. Div. 163 [66 N. Y. Supp. 815]."

In the case at bar the allegation in plaintiff's complaint, that the "said defendant herein was duly indebted to said Katz & Kanter, Incorporated, in the sum of $500," has been repeatedly held to be a conclusion of law, and not a statement of fact. It is true, as said in

Muller v. Kling, 149 App. Div. 176, 133 N. Y. Supp. 614, it is well settled that a draft drawn upon the general credit of the drawer with the drawee does not operate to assign a particular account or fund, even though one is indicated, to which the draft is to be charged or out of which the drawee is to reimburse himself as the case may be. But the facts in the case at bar are entirely different from the facts stated in the case of Muller v. Kling, supra. In that case the draft was drawn and accepted without specifying any fund or account out of which it should be paid; but as the draft accepted in the case at bar was payable only for work to be performed on the contract, and as the same was to be deducted out of the last payment for the Fourteenth street job, and as it is specified that it must be paid out of the last payment when the contract work was completed by the contractor, and no facts having been alleged in the complaint that the work was completed and that the sum was due, the plaintiff has failed to allege or prove a cause of action.

Motion for a new trial must therefore be denied. Submit order.

(87 Misc. Rep. 15)

MILAN V. KERLANSKY.

(Dutchess County Court. September, 1914.)

EXECUTION (§ 360*)—SUPPLEMENTAL PROCEEDINGS RIGHT TO REMEDY-JUDGMENT OF CITY COURT-"PROPERTY."

An order for the examination of the judgment debtor in proceedings supplementary to execution under Code Civ. Proc. §§ 2432, 2435, 2436, authorizing such proceedings on an execution against "property," was unauthorized, where the judgment on which the execution was issued was rendered by a City Court for less than $25, exclusive of costs, which execution, under the express provisions of Code Civ. Proc. § 3043, made applicable to City Courts by Laws 1902, c. 35, could not be a lien on real estate; such sections applying only when there is such a lien.

[Ed. Note. For other cases, see Execution, Cent. Dig. § 1093; Dec. Dig. § 360.*]

Motion by Joe Milan, judgment debtor, to vacate an order for his examination in proceedings supplementary to execution in favor of Joe Kerlansky, judgment creditor. Motion granted.

Edward A. Conger, of Poughkeepsie, for judgment creditor.
Gaius C. Bolin, of Poughkeepsie, for judgment debtor.

ARNOLD, J. This is a motion to vacate an order requiring the judgment debtor to be examined concerning his property in proceedings supplemental to execution, and the sole question presented is: Had this court jurisdiction to grant the order, where it appears that the judgment was rendered for a sum less than $25, excluding costs?

The judgment was rendered in the City Court of the city of Poughkeepsie, and the transcript issued was filed and docketed in the office of the clerk of the county of Dutchess. The judgment was recovered for $22.64 damages and $4.75 costs, amounting in all to $27.39. Un*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

der chapter 35 of the Laws of 1902, it is provided that the processes, practices, and procedures in City Courts, and the jurisdiction of City Courts of persons and subject-matter shall be the same as in courts of justices of the peace in towns, and transcripts of judgments shall be filed in the office of the clerk of the county of Dutchess, and the enforcements of such judgments shall be had in the same manner and with like force and effect as in courts of justices of the peace in towns. Section 3043 of the Code of Civil Procedure provides:

"Where a judgment, rendered by a justice of the peace, has been docketed with a county clerk, upon the filing either of a transcript from the justice's docket * * the execution, to be issued thereupon by the county clerk, must be in the same form, and executed in the same manner, as an execution issued upon a judgment of the County Court and except, also, that, where the judgment is for a sum less than twenty-five dollars, exclusive of costs, the direction to satisfy the judgment out of the real property of the judgment debtor must be omitted. In that case the provisions of this act, relating to the satisfaction of an execution out of the judgment debtor's real property, are not applicable thereto."

My attention has been called to Mede v. Meyer, 55 Misc. Rep. 621, 105 N. Y. Supp. 957, where a judgment was recovered in the Municipal Court of the city of New York for $23.57 damages, and costs $2, prospective fees $3.01, total $28.58, and transcript docketed in the county clerk's office of New York county, execution returned unsatisfied, and proceedings supplemental to execution issued thereunder; and the court held in a motion to vacate said order that the judgment was a lien upon real estate, and that therefore the court had jurisdiction to grant the order. The court in deciding the motion referred to section 261 of the Municipal Court Act (Laws 1902, c. 580), which provides. that after the transcript of such a judgment is filed in the office of the clerk of the county it "is deemed a judgment of the Supreme Court and may be enforced accordingly." I do not regard that case as an authority for the proposition sought to be maintained by the judgment creditor herein.

In Mason v. Hackett, 35 Hun, 238, the judgment was recovered in the Municipal Court of the city of Rochester in favor of the plaintiff and against the defendant for $20 damages, and $7.85 costs, in all $27.85. Under section 246 of chapter 14 of the Laws of 1880, transcripts of all judgments rendered in that court may be filed in the Monroe county clerk's office, and if the recovery therein is for less than $25, exclusive of costs, the judgment is not a lien upon real estate, and the court held that all the provisions of section 3043 of the Code were made applicable to the said Municipal Court.

Section 3043, to which attention has been, called, expressly provides that an execution issued on a justice's judgment is not a lien upon real estate. The right of a judgment debtor to maintain supplementary proceedings under the Code (sections 2432, 2435, 2436) is based upon an execution "against property" returned unsatisfied. "There is no execution against property, within the meaning of these sections unless the judgment in question, upon the filing of a transcript in

* * *

the county clerk's office, became a lien upon the real estate of the judgment debtor." Mede v. Meyer, 55 Misc. Rep. 621, 105 N. Y. Supp. 957; Importers & Traders' Nat. Bank v. Quackenbush, 143 N. Y. 567,

38 N. E. 728; Mason v. Hackett, 35 Hun, 238; Andrews v. Mastin, 22 Misc. Rep. 264, 49 N. Y. Supp. 1118.

The judgment herein, not being a lien upon the real property of the judgment debtor under section 3043 of the Code and cases cited, there was no jurisdiction for the court to grant the order herein, and the same should be vacated.

Motion granted.

(87 Misc. Rep. 20)

BOYD v. BUFFALO STEAM ROLLER CO.

(Erie County Court. September, 1914.)

1. JUDGMENT (§ 840*)—SUPPLEMENTAL PROCEEDINGS-ASSIGNMENT OF JUDGMENT CONSTRUCTIVE NOTICE.

That the assignment of a judgment was recorded, as required by Code Civ. Proc. § 1270, by the clerk of the county in which the judgment was recovered, did not give "constructive notice" thereof to the judgment debtor, within the meaning of the words quoted, as used in Code Civ. Proc. § 2446, providing that a payment duly made by a judgment debtor to the sheriff for application on a judgment of a third person against the judgment creditor "shall discharge the indebtedness except as against a transferee from the judgment debtor in good faith and for a valuable consideration," of whose rights the person for whom the payment was made "had actual or constructive notice when the payment was made"; an assignment of a judgment not being within the protection of the recording act.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1536; Dec. Dig. § 840.*]

2. NOTICE (§ 5*)—"CONSTRUCTIVE NOTICE."

By "constructive notice" is ordinarily meant that a person should be held to have knowledge of a certain fact, because he knows other facts from which it is concluded that he either did in fact know, or ought to have known, the fact in question.

[Ed. Note. For other cases, see Notice, Cent. Dig. §§ 3, 8-12; Dec. Dig. § 5.*

For other definitions, see Words and Phrases, First and Second Series, Constructive Notice.]

Action by Donald D. Boyd against the Buffalo Steam Roller Com-
pany.
On motion to set aside an order. Motion denied.
See, also, 162 App. Div. 926, 147 N. Y. Supp. 1100.

George D. Forsyth, of Rochester, for plaintiff.
Frederick C. Slee, of Buffalo, for defendant.

LAING, J. [1] This is a motion to set aside an order made in an action in this court wherein the Castle Inn Company was plaintiff and said Donald D. Boyd defendant, permitting the said Buffalo Steam Roller Company, as judgment debtor of Donald D. Boyd; to pay to the Castle Inn Company, a judgment creditor of Donald D. Boyd, the sum of $159.99, and interest from September, 1910, together with the sheriff's fees, and also to set aside another order in the same proceedings directing the sheriff to apply that sum received by him upon the judgment of the Castle Inn Company.

*For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

On June 28, 1912, Donald D. Boyd recovered a judgment in the Supreme Court, Livingston county, against the Buffalo Steam Roller Company for $309.22, damages, and $91.52, costs. The judgment was docketed in said county on that day, and the judgment creditor assigned the judgment to his attorney, Frank K. Cook; the assignment. being recorded in the Livingston county clerk's office on the 3d day of July, 1912. On January 7, 1914, Boyd assigned all his interest in said. judgment to Daniel W. Forsyth, subject to the interest of Cook under his said assignment, and the assignment to Daniel W. Forsyth was recorded in the Livingston county clerk's office on the 9th day of January, 1914. The affidavits tend to show that Daniel W. Forsyth was a purchaser in good faith and for a valuable consideration. On September 13, 1910, in the Municipal Court of the city of Buffalo, the Castle Inn Company recovered a judgment against Daniel D. Boyd for $159.99. On the 26th day of February, 1914, on the affidavit of Edward Taft and Frederick Slee, the judge of this court made an order permitting the Buffalo Steam Roller Company to pay to the sheriff of Erie county the sum of $159.99, with interest from the 13th day of September, 1910, together with his fees, in payment of the Castle Inn Company judgment, under section 2446 of the Code. On the same day on the same affidavits a third party order was granted directing the examination of the Buffalo Steam Roller Company before a referee. No examination was made or filed. On the 20th day of April, 1914, a further order was made directing the sheriff to apply the sum received from the Buffalo Steam Roller Company on the Castle Inn Company judgment. No notice was ever given to the judgment debtor, Donald D. Boyd, nor to the assignee of the judgment, Daniel W. Forsyth, nor to the assignee of the judgment, Frank K. Cook.

Section 2446 of the Code provides:

"At any time after the commencement of a special proceeding, authorized by this article, and before the appointment of a receiver therein, or the extension of a receivership thereto, the judge, by whom the order or warrant was granted, or to whom it is returnable, may, in his discretion, upon proof, by affidavit, to his satisfaction, that a person or corporation is indebted to the judgment debtor and upon such a notice, given to such persons, as he deems just, or without notice, make an order, permitting the person or corporation, to pay to a sheriff, designated in the order, a sum, on account of the alleged indebtedness, not exceeding the sum which will satisfy the execution. A payment thus made is, to the extent thereof, a discharge of the indebtedness, except as against a transferee from the judgment debtor, in good faith and for a valuable consideration, of whose rights the person or corporation had actual or constructive notice, when the payment was made."

The moving party, Forsyth, appears to have obtained an assignment of the Boyd judgment in good faith and for a valuable consideration, and claims that the Buffalo Steam Roller Company had constructive notice of the assignment of the judgment to Cook and to Forsyth, because those assignments were filed and docketed in the county clerk's office of the county of Livingston prior to the time when the orders were obtained which are now sought to be set aside. It is argued that the original judgment was required to be docketed in the clerk's office of the county in which the judgment was recovered and the roll filed, and that the clerk is required by section 1270 of the Code to make a

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