Metropolitan Bank v. Lord — 1 Abb. Pr. 185

Majority

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METROPOLITAN BANK a. LORD.

New York Superior Court; Special Term,

January, 1855.

Headnote

Pleading.—Title to Pbomissoby Note.

"When a complaint, upon a promissory note, in an action against the maker and payee, to show title in the plaintiff, avers an indorsement by the payee, and a delivery to the plaintiff, but not saying by whom, and that the plaintiff is “ the holder and owner of such note,” an answer which puts in issue the latter allegation, and denies that the payee ever delivered it to the plaintiff, but on the contrary alleges that he delivered it to a third person, whose name is stated, is not frivolous.

An answer, putting in issue all the material allegations of a complaint, which are employed to show that the title to a note sued upon is in the plaintiff, and that he is the actual party in interest, is not frivolous.

Motion for judgment on frivolous answer.

The complaint states, as the facts constituting the plaintiff's cause of action, that Lord made a note dated July 6th, 1854, for the sum of $1000, payable four months after its date, to the order of Searls, at the Suffolk Bank, “which said note was afterwards indorsed by the defendant E. C. Searls, and delivered to the plaintiff. The due protesting of the note, and notice thereof to Searls : and “ That the plaintiffs are holders and owners of such note, and that there is due to them thereon from the defendants the sum of $1000, for which it prays judgment.

Lord answers: 1st, that Searls did not deliver the note to the plaintiff, but to the Suffolk Bank.

2d. “ That he has not any knowledge or information sufficient to form a belief whether or not the plaintiffs are the owners or holders of said note, and he therefore controverts and denies the allegations in that behalf contained in the complaint.

3d. That the plaintiffs have not legal capacity to sue, inasmuch as it does not appear in or by the said complaint that

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they are a corporation or in any way or manner empowered to act or sue under the name or style of the Metropolitan Bank.

4. That the complaint does not state facts sufficient to constitute a cause of action, inasmuch as it does not appear that the plaintiffs have any legal power or capacity to own or hold the said promissory note, or any legal existence whatever. It claims the same benefit of the 5d and 4th defences, as if the defendant had demurred to the said complaint for the causes respectively set forth in said Sd and 4th defences.

The plaintiff now moves for judgment against the defendant Lord} on account of thq frwolousness of his answer.

P. TJ. Turney, for plaintiff.

Mr. Smales, for defendant.

The third and fourth defences, so called, consist, neither of denials of any allegations in the complaint, nor of any averments of new matter: the insertion of them in the answer is an attempt to demur to, as well as to answer the complaint. Neither of them, however, states objections, which would sustain a formal demurrer, assigning them as causes of demurrer. (The Union Mutual Ins. Co. v. Osgood 12 Leg. Obs. 85).

An action must be brought in the name of the real party in interest. (Code, § 111). To make title to the note, the indorsement of it by Searls, and a delivery of it to the plaintiffs, and that they are the holders and owners of it, are averred. It is not directly alleged that Searls delivered it to the fladntiffs. If the complaint can be construed as meaning that, then that allegation is denied, and the answer also avers, that on the contrary, it was delivered by him to the Suffolk Bank. If it does not mean that, then there is no averment that it was delivered to the plaintiffs by any one shown to have a right to deliver it, unless it be the further allegation that the plaintiffs are the owners and holders of such note. But this is put in issue by the answer. The answer denies it, in a manner allowed by the Code. The allegations made to show that the title to the note is in the plaintiffs, are controverted by the

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answer. If the issues made by the denial of these allegations should be found in favor of the defendant, the plaintiff could not recover. The answer, in this view of it, is clearly not frivolous.