Fifth-Third National Bank v. Hudson Refrigerator Co.

GUY, J. The action is to recover on a promissory note made by a corporation. The complaint alleges that after maturity the maker (not a party to the action) transferred all its assets to the defendant corporation, and that in consideration thereof the defendant corporation assumed to pay all the debts and liabilities of the maker. After [169] answer filed, the plaintiff, under section 1778 of the Code, moved for and obtained judgment on the ground that the defendant had not procured a special order directing a trial of the issues. The court erred in granting the motion. The statute invoked cannot be extended in its operation beyond its very terms. Shorer v. Times Print. & Pub. Co., 119 N. Y. 483, 23 N. E. 979. The note in question was not made by the defendant corporation, which can only be held because of its alleged assumption of the indebtedness of the maker. In the Shorer Case, supra, it was decided that the act did not apply in a suit against a corporation indorser of a note. As the plaintiff cannot recover simply on the note, but must also prove the assumption of the indebtedness by the defendant after the maker’s default, as alleged, the statute has no application. See Tautphoeus v. Harbor & Suburban Ass’n, 96 App. Div. 23, 88 N. Y. Supp. 709. Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.