Hermann v. Passmore , 79 N.Y. Sup. Ct. 526 ( 1893 )

LEWIS, J.

We are not able to see that the Passmores were under any legal obligation to reimburse the plaintiff for the money he paid to the bank to take up his own note given for his own benefit. Concededly, it was given for his own benefit, and not for any debt or obligation the Passmores, or either of them, owed him. The plaintiff, it is true, had discharged and surrendered a bond and mortgage he held upon Mrs. Passmore’s property for the sum of $500, and they had thereafter promised to give to the plaintiff a bond and mortgage for $600. The alleged consideration, however, for the promise, as stated in the complaint, was the plaintiff’s paying his own note of $385. In view of the accommodation extended to the defendants Passmore by the plaintiff in discharging the $500 mortgage, he might very well have expected that they would extend to him, in return, the agreed accommodation. The plaintiff, however, does not seem to have any legal claim upon the defendants which the courts can enforce. The contract which the plaintiff claims the defendants failed to perform, and upon which he relies for his cause of action, has to do only with the $385 note. Eeference is made in the complaint to another note of $600, but the allegations of the complaint in regard to the giving of the bond and mortgage for the sum of $600 have no apparent reference to the $600 indebtedness. The complaint shows that the plaintiff has a demand against the defendant William E. Passmore for the sum of $600, but he had no interest in the real estate in question; and, if he had, plaintiff is not in a position to. attack the conveyance to the defendant Hotaling, or the assignment of the $800 mortgage to Humburch, as his demand against William E. Passmore is not in judgment. The court at special term correctly held that the plaintiff had failed to state a cause of action in his complaint. The judgment appealed from should be affirmed, with costs. All concur.