Champion Shoe Machinery Co. v. Landman , 97 Misc. 642 ( 1916 )

Finch, J.

There is no formal complaint. The action is one to foreclose a lien on a shoe stitching machine.

The defendant in July, 1915, made a contract with the plaintiff, which is in form a lease of the machine, providing that certain specified rent be paid by the defendant, with a provision that when there has been paid $525 rent, the defendant might elect to become the owner of the machine, and upon giving notice to the plaintiff the machine would become the property of the defendant. Notes were executed for twenty-nine monthly payments of rent, and it was provided that upon default the whole amount provided for in the notes was to become due, and the plaintiff might retake possession of the machine.

There was a default in the payment of the notes, and at the trial there was a balance due of $300. The only evidence given was the direct examination of the defendant called as a witness by the plaintiff. Plaintiff failed to put in any evidence of a demand for payment, and the court dismissed the complaint on that ground, holding that a demand was necessary. A demand was not necessary, because the notes were made payable at plaintiff’s office. But even if a demand was necessary plaintiff’s request to reopen the case so as to ask the defendant the one question in regard to a demand should have been allowed since no rights of the defendant were shown to he prejudiced. Klein v. Sarnoff, 83 Misc. Rep. 447.

■For the foregoing reasons, the judgment is reversed and a new trial ordered, with thirty dollars costs to appellant to abide the event.

Lehman and Whitaker, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.