Clute v. McCrea ( 1888 )

Barnard, P. J.

The answer avers a loan and advance of money by the defendant to the plaintiff, “ which he promised to pay or apply as defendant might direct, no part of which has been repaid.” This part of the answer was held bad on demurrer at special term, and the general term reversed this order. The opinion stated that the words made out a good cause of action; that the law implied a promise from the fact of the loan; and that no demand was necessary, and need not be averred. The opinion did not insert the words “or apply” following the word “pay,” and for that reason a reargument is asked. The omitted words do not change’the rule of law. A promise to pay or apply the moneys of the defendant is merely a promise to pay. If no-direction be given to apply the loan to any specific purpose, the promise to repay the money can be enforced without a demand like other loans. The motion should be denied, without costs.

Dykman and Pratt, JJ., concur.