[After stating the facts as above.]—A promissory note is “ a written engagement by one person to pay another person therein named, absolutely and unconditionally, a certain sum of money, at a time specified therein.” The writing sued upon is certainly just that and nothing more. The clause expressing a consideration for the defendant’s undertaking in no way qualifies his promise, or renders it otherwise than absolute and unconditional. If, instead of those words, it had said “ for a horse,” or “ for value received,” the contract would be unchanged. The instrument contains no undertaking by the payee to do anything whatever. In Considerant v. Brisbane (14 How. Pr. 487), which may be taken as a specimen authority among those relied on by the learned counsel for the appellant, the promise to pay was, in law, conditional upon the receipt of stock, whereby the instrument lacked a necessary characteristic of promissory notes. In Grant v. Johnson (5 N. Y. 247), the decision was founded upon the first rule stated by Sergeant Williams in his note to Pordage v. Cole (1 Saund. 320 b), in these words: “ when a day is appointed for the payment of money, and the day is to happen after the thing which is the consideration to be performed, no action for the money can be sustained without averring performance.” The defendant by the agreement was to pay a second installment of the purchase price of land at a day subsequent to the one whereon the plaintiff was to deliver the deed. I can see no applicability in the case to the *346one at bar. There is no covenant upon the part of the plaintiff here to furnish the panels, and the payment by the defendant of the money is neither in terms nor by law made dependent upon his so doing. The advertising privilege is the consideration expressed, but failure therein is only matter of defense. Promissory notes are presumed to be founded upon a valuable and valid consideration, and its absence, by virtue of this legal presumption, is a defense to be pleaded by answer.
The disposition by the court of an issue made on demurrer is the trial of an issue of law. The successful party is entitled to the costs given in such event. Under the present practice, no appeal can be taken save from the judgment when entered. If leave to amend or plead over be given, the court may impose payment of the costs, as a condition to the exercise of the leave. The defendant relied upon his legal position for a defense, and judgment has passed against him. This he might have prevented, by availing himself of the leave given by the court below, which he declined to do.
The judgment should be affirmed, with costs.
Van Brunt, P. J., concurred.
Judgment affirmed, with costs.