Niblo v. Harrison — 7 Abb. Pr. 447

Majority

p. 447

NIBLO a. HARRISON.

New York Superior Court;

Special Term, November, 1858.

Headnote

Pleading.—Complaint.

In a complaint by the payee of a promissory note against the maker, it is not necessary to allege that the plaintiff has not parted with the note, or that he is the holder. A complaint showing that the defendant made the note, payable to the plaintiff, and delivered it to him, and that it has not been paid, is sufficient on demurrer.

Demurrer to complaint.

The action was on a promissory note. The allegations of the complaint were in the following form :

“ That on-, at-, the defendant made his promissory note, dated on the day last named; whereby, on demand, he promised to pay to the plaintiff or his order-dollars, for value received, and then and there delivered said note to the plaintiff. And the defendant, though often requested, has not paid the said note, or any part thereof, and the whole amount thereof is now remaining due and unpaid.

“ Wherefore,” &c.

The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action.^[1]

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B. Galbraith, for the plaintiff.

—I. The complaint does state facts sufficient to constitute a cause of action. Ho other fact is necessary to he stated.

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II. If the defendant admits that a canse of action is shown, but that it is not shown that the plaintiff is the party entitled to sue, then he has mistaken his ground of demurrer. He should have demurred on the ground that the plaintiff has not capacity to sue. (Viburt a. Frost, 3 Abbotts’ Pr. R., 120 ; Bank of Lowville a. Edwards, 11 How. Pr. R., 216.) 1. A demurrer which stated “ that it does not appear that plaintiff had any title to the note when the suit was commencd,” was held not to sufficiently assign a cause of action of demurrer. (White a. Low, 7 Barb., 204 .) 2. If the complaint leaves it in doubt whether or not a cause of action is or is not sufficiently expressed, he should have moved to make it definite and certain.

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III. The complaint does sufficiently show a cause of action in the plaintiff. The plaintiff being shown once to have been the holder of the note, his continuing the holder is necessarily implied, and what is necessarily implied need not be averred. It will not be presumed that the plaintiff is suing on a note after he has parted with it. (Appleby a. Elkins, 2 Sandf., 673 ; Tyler a. Corbeire, 8 How. Pr. R., 385 ; Bank of Lowville a. Edwards, 11 Ib., 217; Mitchell a. Hyde, 12 Ib., 461; De Santes a. Searle, 11 Ib., 477.) 1. If the complaint had only alleged the making the note without alleging a delivery to the plaintiff, it would have been sufficient. (Conway a. Lewis, 8 Ir. Law R., 4.) 2. It is not necessary to anticipate the defence. It is sufficient if the pleading contain a goo A aprima facie case, without reference to objections not yet urged. (Stephens’ Pl., 350.)

3. If the defendant desires to rely bn the fact that plaintiff has indorsed away the note, he must set it up as new matter. (Arthur a. Beales, 1 Exch., 608 ; Fraser a. Welch, 8 M. &W., 609 ; Barber a. Lemon, 12 Jar., 246; Rogers a. Chilton, 17 Lem J. Ex., 8-345; De Santes a. Searle, 11 How. Pr. R., 477.)

4. If once held that it is necessary to anticipate possible defences, where will it stop % Must every possible defence be anticipated ? Must it be alleged that the maker was not an infant ? That the note has not been altered, &c. ?

. IV. If the complaint had gone on, and stated that the plaintiff is the owner,—the real party in interest,^—the legal owner and holder,—the lawful owner and holder,—the holder and owner, or any equivalent expression,—besides that this would have been a violation of the rule that facts only,"and not conclusions of law, are to be stated, it would have put the defendant in no better position. He could not by a mere denial have raised an issue on any of these allegations. (Thomas a. Desmond, 12 How. Pr. R., 321; Adams a. Holley, Ib., 330 ; Ensign a. Sherman, 13 Ib., 35; Bentley a. Jones, 4 Ib., 202 ; Edson a. Dillaye, 8 Ib., 274 ; Tompkins a. Acer, 10 Ib., 309 ; Brown a. Ryckman, 12 Ib., 313; Russell a. Clapp, 7 Barh., 482; Hatch a. Peet, 23 Ib., 582; Seeley a. Engell, 17 Ib., 530 ; Fleuret a. Roget, 5 Sandf., 646 ; Catlin a. Gunter, 1 Puer, 253 ; Witherspoon a. Van Dolar, 15 How. Pr. R., 266.) The allegation of délivery was the proper mode of stating issuahly the fact that the plaintiff was the holder of the note—i. e., the

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person having it rightfully in possession. (Burrell's Law Dict., Holder ; Story on Notes; Byle’s on Bills.)

V. The complaint need state only such facts as, on a general denial, the plaintiff must prove on the trial to establish his case. (Safford a. Drew, 3 Duer, 632 .) 1. To establish his case on a general denial, the plaintiff must prove :

(1.) The making the note by the defendant.

(2.) The delivery to the plaintiff.

The note is produced, and the defendant’s handwriting proved, as the best evidence to establish these facts, and not to prove that the plaintiff continues the holder of the note. 2. A plaintiff may recover without being m fact the holder—as, where the note is destroyed, or in possession of the defendant. (Des Artes a. Leggett, 16 N. Y. (1 E. P. Smith’s) R., 582; Smith a. McClure, 4 East., 476.) 3. And where a note is lost, plaintiff can recover on giving an indemnity. (2 Rev. Stats.) This shows the question is not who is the holder in fact / but who, on the facts, is entitled to recover. 4. And where the answer admits the making and delivery to the plaintiff, the plaintiff is not bound to produce the note on the trial. (Shearne a. Bumam, 10 Ad. & Ell., 593 ; Read a. Gamble, Ib., 597; Lane a. Mullins, 2 Q. B., 254; Goodered a. Armorer, 3 Ib., 956 ; Lawrence a. Clarke, 15 Law Jur., 40, Ex.; Davis a. Barker, 16 Ib., 86, C. P.; Barker a. Malcolm, 7 M. & W., 101.)

VI. No additional allegation would better the condition of the defendant. If he has knowledge or information of any transfer, he can set it up by answer: if he has not, he cannot put plaintiff to prove the negative, that he has not transferred, simply by denying any possible allegation affirming a title in the plaintiff.

Wm. L. Morris, for the defendant.

—The demurrer is general, that the complaint does not state facts sufficient to constitute a cause of action.

The facts stated are: that the defendant made the note sued upon, whereby he promised to pay a certain sum to the plaintiff or his order, on demand; and that he delivered the note to the plaintiff; and that the defendant, though often requested, has not paid the note, .and that the whole amount

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thereof is due and unpaid ; wherefore the plaintiff demands judgment.

It is objected that the complaint does not show that the plaintiff is the party in interest, and that the money payable by the terms of the note is due to him.

I think there is nothing in the objection.

The mating and delivery of the note to the plaintiff give him & prima facie title.

If the complaint had contained an averment that the plaintiff was the lawful holder and owner of the note, or that the amount of the note was due to the plaintiff, it would not have made it any the better,—no issue could have been taken on such averments, as they are mere conclusions of law.

If the plaintiff, since receiving the note, has transferred it to some one else, the defendant may set it up by answer.

The authorities are quite uniform on this question. (II How.' Pr. R., 477; 1 Duer, 265 ; 2 Sandf., 673 ; 12 How. Pr. R., 461; 8 11., 388 ; 6 Scmdf, 646.)

Judgment must be given for the plaintiff on the demurrer, but with liberty to the defendant to answer within 10 days, on payment of costs of demurrer.