Mount Vernon Rattan Co. v. Joachimson , 103 N.Y.S. 1045 ( 1907 )

Woodward, J. :

The principal question discussed in the opinion of the learned judge at Special Term is whether the complaint shows upon its face "that the plaintiff corporation was insolvent at the time when the ¡agreement was made relating to the distribution of the assets. It •appears to have been assumed that if the corporation was insolvent •at that time the agreement was invalid. It seems to us, however, that the issue presented by the demurrer must be determined in "favor of the defendants irrespective of that question. If we assume in accordance with the conclusion of the court below that the complaint' does not show the corporation to have been insolvent, it is -difficult to perceive what consideration there was moving to. the ■defendants for entering into the agreement, or how the plaintiff ¡suffered any damage in a legal sense by reason of the presentation ■of its note and the payment thereof. A solvent corporation is certainly bound to pay its debts. And if this corporation was solvent, ■the agreement on its part to distribute the proceeds resulting from the disposition of its assets equitably among its creditors was merely ¡a promise to do that which the law required. Such a promise is mot a consideration sufficient to support an agreement on the part of a creditor “ to forbear forcing collection ” of his claim. On the same assumption of solvency no harm resulted to the plaintiff by reason of the presentation of its note at the bank where it was made payable, and where presumably the plaintiff had deposited sufficient funds to pay it.

Furthermore, it seems to us that the complaint is plainly insufficient in another view. The agreement whiph it is. alleged that the defendants have violated by obtaining payment of the note wdiich evidenced their claim was an agreement to forbear from forcibly collecting such claim. This plainly contemplated merely collection by legal process. The element of force, however, was wholly lacldng in the act of the defendants of- which the plaintiff «complains. There was nothing forcible in the presentation of the note at the bank. If.the note had.been dishonored and the defendants had instituted legal proceedings to collect it, then it might well be claimed that there had been a violation of■ the agreement; but . we think it would be giving to the language of the pleader a meaning wholly unwarranted by his words to hold that what the defendants did was an effort forcibly to collect their debt. » • . '

. Eor these reasons we are satisfied that the complaint failed to set . out facts sufficient to constitute .a pause of action. The- interlocutory judgment should, therefore, be-reversed and.the demurrer sustained, with leave to the plaintiff , to amend upon themsual terms

Hirsghberq, P. J., Jenks,. Hooker arid Gaynor, Jj., concurred

Interlocutory judgment- reversed, with costs, and demurrer sus tained, with costs, with leave to the plaintiff to plead anew on, pay mem within twenty, days. -