Citation Numbers: 18 N.E.2d 129, 279 N.Y. 207
Judges: CRANE, Ch. J.
Filed Date: 11/29/1938
Status: Precedential
Modified Date: 1/12/2023
The complaint in this action was dismissed on motion made under rule 107 of the Rules of Civil Practice, subdivision 6, on the ground that the cause of action did not accrue within the time limited by law for the commencement thereof. The complaint is brought upon a promissory note which, if it be under seal, comes within the twenty-year Statute of Limitations. The question presented on the motion was whether the note was a sealed instrument merely because it had opposite the maker's name the word "Seal," and, if not, whether a question of fact was presented calling for a trial, whereon the plaintiff would have the burden of proving that the note was intentionally sealed.
On the 10th day of March, 1925, A.J. Richey and his wife, Dorothy D. Richey, of Dade county, Florida, entered into a contract to sell real property in Florida to the present defendant, Jean G. Venetos. The contract called for installment payments secured by promissory note. The contract was concededly under seal. The complaint alleges the contract, and that the amount of the purchase price was past due and owing; that the Richeys tendered to the defendant a good and sufficient deed conveying good and marketable title, and demanded payment of the note sued upon; and that the defendant refused to pay or accept the deed. The note in question was signed and executed in Brooklyn, New York, March 10, 1925, for $12,183.50, payable at the Corn Exchange Bank, Flatbush Avenue Branch, in Brooklyn. It is Signed "J.G. Venetos (Seal)." The word "seal" *Page 210 is printed on the paper, so that we may assume that it was there at the time Venetos signed the note. A.J. Richey, the payee of the note, transferred his interest therein to the plaintiff. According to the authorities in this State, this promissory note is not a sealed instrument, in the absence of any explanation as to how or under what circumstances it was made, or any statements or facts showing an intention on the part of the maker to adopt the seal or to create a sealed instrument.
Matter of Pirie (
This rule of the Pirie case has been followed by the courts of this State and in other States, and recognized as the rule of New York in the text books. We again referred to it in EmpireTrust Co. v. Heinze (
Again, in Cochran v. Taylor (
In Caputo v. DiLoretto (
The statement in the Pirie case, that there must be recognition in the instrument of the seal, was nothing new to the law, as it is found in Newbold v. Lamb as early as 1819 (
The statement in the headnote of Barnard v. Gantz (
The law, therefore, of this State is well established and has been followed and recognized, as before stated, in other courts. A promissory note bearing a signature, after which come the printed letters "L.S." is not in and of itself sufficient to constitute a specialty, a sealed instrument. There must be in the instrument some acknowledgment or recognition of the seal or else there must be proof that it was the intention of the parties to make it a sealed instrument. This proof may refer to words spoken or to circumstances of execution leading to the inference that the parties intended to use the seal. *Page 213
The Pirie case recognized that such proof might be forthcoming by citing Smith v. Henning (
The affidavit of the defendant on the motion to dismiss the complaint stated that when the note was signed there was nothing said nor was there anything discussed, nor was there any intention that the note be considered a sealed instrument within the purview of the statute. The plaintiff met this by the affidavit of A.J. Richey, the payee. He denies that it was never the intention to seal the note but, on the contrary, asserts that the defendant did intend to affix his seal, and that the note was given in connection with the real estate transaction; that the note was given as part of a consideration for an instrument under seal, "and that it was understood between the parties to the contract and to the note that both were to be sealed instruments."
We think these allegations are sufficient to create a question of fact regarding the nature of this instrument. Standing alone and by itself, unexplained, it is not a sealed instrument, but in view of these denials and allegations, the plaintiff may prove that it was the intention of the parties to make it a sealed instrument, and that the maker understood that he was adopting the seal. The burden is on the plaintiff, but the issue of fact is here and must be tried out. The plaintiff must have an opportunity to present all the facts.
For these reasons the judgment of the Appellate Division should be reversed and the order of the Special Term affirmed, with costs in this court and in the Appellate Division. *Page 214