Taylor agt. Rennie. elapsed for the receipt of an answer in due course of mail, was not bound to wait any longer, but was at liberty to regard his proposition as rejected and to proceed at once. The learned judge who decided the case in the court below remarks that one of the intervening days was election day. It is true that one of the intervening days was election day in this state, but it is not found as a fact, nor is there any evidence that it was election day in the state of Connecticut; nor can the court take judicial cognizance of the fact, even if it existed. He also intimated that defendants had a reasonable time to purchase the draft. But the terms of the letter of October 27th did not contemplate that a draft should be sent by return mail, but merely an answer whether the proposition would be accepted or not. It was not necessary for defendants to wait to purchase a draft before they mailed an answer accepting the proposition. But even on the theory that a draft was to be sent under the terms of the letter of October 27th, still the draft was not sent within a reasonable time. That letter was received on Friday the 29th; defendants had the whole of Saturday the 30th to purchase the draft. The 31st was Sunday. Then the defendants had the whole of Monday the 1st of November in which to mail the letter; and assuming that the 2d was not election day in the state of Connecticut, then they had the whole of the 2d. The defendants did not even attempt to purchase a draft or send an answer till November 3d. It is apparent that a draft could have been purchased and mailed in one day, as in fact it was. We see no reason why defendants could not have made the purchase and mailed the draft on the 30th of October, the day after receiving the plaintiff's letter. Especially in this case did it behoove the defendants to be prompt in mailing either a draft or an answer, the same or the next day after the receipt of the plaintiff's letter, as the draft was to pay an indebtedness due from defendants to plaintiff. The draft was clearly not remitted Taylor agt. Rennie. within a reasonable time after the receipt of plaintiff's letter. The most favorable construction for defendants that can be given to the letter of October 27th is, that it is a promise to give time for the payment of an existing debt for such reasonable length of time as would allow a draft to be sent for its payment. The elementary works lay down the following principle: "A promise by a creditor to accept less than the full amount of his demand, or to give time for the payment of an existing debt, is void unless there be some new consideration, such as an undertaking to give an additional or different security, or to pay the debt in a manner or at a time more beneficial to the creditor than that originally agreed upon; or unless an uncertain claim be reduced to a certainty; or unless the creditor's engagement to take less than his demand, or give time, be contained in a composition deed or agreement entered into by the debtor with his creditors generally. In the latter case it would be a fraud on the creditors to sue the debtor for the remainder of the claim." The payment of a debt by a draft is for the convenience and benefit of the debtor and not of the creditor. The creditor is entitled to be paid in specie at his own door; and we cannot say that a payment of a debt due, by a draft, instead of in specie, is a payment at a time and in a manner more beneficial to the creditor than that originally agreed upon. Nothing appears in the case showing that the defendants have been injured in consequence of relying on the letter of October 27th. The draft has been at their order. We are consequently of opinion that the plaintiff was not bound to wait one hour after the mailing of the letter of October 27, but was at liberty to proceed at once. We regard the letter of October 27 as a mere courtesy extended to defendants to enable them to pay the debt in a manner most convenient to them before suit brought. The courtesy called for immediate and prompt Waters agt. Clark. action. If defendants did not sufficiently appreciate the courtesy to accord that action, it is that want of appreciation which has involved them in litigation, and subjected them to costs. This case does not fall within the exceptions stated in Edminston agt. McLoud, (16 N. Y. R., 543.) Judgment reversed, and new trial ordered; costs to abide the event. LEONARD, Justice. The plaintiff made a proposition to defendants, from which he could recede if he pleased. Before the draft came to hand the circumstances under which the proposition was made had changed. Expenses were incurred. The plaintiff had receded from his proposition. The defendants were required to act promptly when the plaintiff's proposition was received. The defendants delayed so long that the plaintiff had incurred expense before the defendants' draft came to hand. The plaintiff was not guilty of any misconduct in commencing suit. The defendants were liable for the costs of suit when their answer was put in. Judgment reversed, &c., as within directed. SUPREME COURT. MARTIN WATERS agt. JOSIAH G. CLARK. In an action to recover rent for the use and occupation of premises, it is not necessary to aver in the complaint how the relation of landlord and tenant arose between the parties. If there is an omission to state the time when the defendant occupied the premises, and the rate at which the rent is claimed, or the period of time during which the rent is in arrear, such defects are not available on demurrer; they can be corrected on motion to render the pleading more definite and certain. New York Special Term, November, 1861. Waters agt. Clark. DEMURRER to complaint. G. O. HULSE, for defendant. C. P. SCHERMERHORN, for plaintiff. LEONARD, Justice. This case comes before.the court on a general demurrer to the complaint for not stating facts sufficient to constitute a cause of action. The complaint states, that on the 1st of May, 1861, the defendant became indebted to the plaintiff in $137.50, for the use and occupation of the plaintiff's premises, situated at 126 Charlton street, in the city of New York, and that no part of that sum has been paid. The defendant is here informed that the plaintiff claims that the defendant has occupied and used his premises in Charlton street, for which he is now indebted in a certain sum. Such is the reasonable and plain intendment of the language used. In my opinion, a contract is clearly implied, that the defendant requested, or consented to occupy the premises, and promised to pay therefor. (Allen agt. Patterson, 3 Seld. R., 476.) The plaintiff asserts that the premises are his; he is therefore the landlord. No one, with common understanding, can doubt that the relation of landlord and tenant existed prior to May 1st, 1861, between the plaintiff and defendant, as to the occupation of these premises. It is not necessary to aver in pleading how the relation of landlord and tenant arose between the parties. The plaintiff can prove, under this complaint, an occupation under a written or parol agreement for hiring, or such facts as will raise an implied promise to pay for the occupation of the premises, in case there was no express agreement. (Pierce agt. Pierce, 25 Barb. R., 243; Morris agt. Niles, 12 Abb. Pr. R., 104; Ten Eyck agt. Houghtailing, 12 How. Pr. R., 528; Taylor's Landlord and Tenant, § 636; Com. Landlord and Tenant, pp. 141–2.) Sanborn agt. Elizabethport Manufacturing Company. There is an omission on the part of the pleader in stating the time when the defendant occupied the premises, and the rate at which the rent is claimed, or the period of time during which the rent is in arrear; but these defects are not available on demurrer. Such defects can be corrected on motion to render the pleading more definite and certain. Judgment for plaintiff on the demurrer, with leave to defendant to answer in ten days, on payment of the costs of the demurrer. SUPREME COURT. SAMUEL T. SANBORN and others agt. THE ELIZABETHPORT MANUFACTURING COMPANY. An application by defendant to discharge an attachment under § § 240-41 of the Code, is not a motion of which the plaintiff is entitled to notice, or of which he is entitled, as a matter of right, to appear and oppose. New York Special Term, November, 1861. APPLICATION by defendants to discharge an attachment. BARNARD, Justice. The application by defendants to discharge the attachment under sections 240 and 241 is purely ex parte. Equally so with the plaintiff's application for the warrant. The Code nowhere gives the plaintiff any right to except to the sureties offered by the defendants. The defendants' attorney, in his affidavit, says, that he gave notice because judges have usually required the defendant to give some short notice to the plaintiff. If such requisition has been made, it was not because the plaintiff was entitled thereto, but that the judge desired the plaintiff to be present as amicus curia to give the court such information as he may have respecting the sufficiency of sureties, so that, if the circumstances require, greater cau |