Phelps v. Ferguson — 9 Abb. Pr. 206

Majority

p. 206

PHELPS a. FERGUSON.

New York Superior Court;

Special Term, September, 1859.

Headnote

Pleading.—Complaint on Negotiable Paper.—Frivolous Demurrer.

The complaint against the acceptor of a bill of exchange, alleged the drawing of the bill, describing it, a delivery of it to the payee, “who then and there indorsed it, and delivered it so indorsed; and thereafter and before maturity the same came lawfully into the possession of these plaintiffs for value,” that it was accepted, but “the same, is past due and wholly unpaid, and the defendant is now justly indebted to these plaintiffs thereon in the sum of,” &c., without any allegation that plaintiffs were partners, or that they were owners and holders of the bill.

Held, sufficient on demurrer.^[1]

p. 207

"Where the complaint is sustained by reported cases, a demurrer to it must be treated as frivolous.^[1]

Motion for judgment on the pleadings.

The action was on a bill of exchange, against the acceptor. The allegations of the complaint were as follows :

“ That heretofore, and on or about the 28th day of April, 1859, at Indianapolis, in the State of Indiana, certain persons, under their firm-name of William M. Morrison & Co., drew their certain bill of exchange in writing, bearing date on that day, and directed the same to the defendants, at Ko. 123 West 3!th-street, in the city of Kew York, whereby two months after said date of said bill they requested the defendant to pay to the order of one Jacob Morrison twelve hundred and fifty dollars, value received, and therefore delivered said bill of exchange to the payee therein named, who then and there indorsed it, and delivered it so indorsed, and thereafter and before maturity the same came lawfully into the possession of these plaintiffs for value ; that the same was duly presented to the said defendant for acceptance, and that he accepted the same by a written ac

p. 208

ceptance upon the face; that the same is now due and payable, but has not been paid, nor any part thereof, and the defendant is now justly indebted to these plaintiffs thereon in the sum of $1250, with interest.

“ Wherefore,” &c.

The defendant demurred to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action; because,

First. It neither averred any copartnership or joint relation on the part of the plaintiffs;

Second. The complaint did not allege that the plaintiffs are the “ owners” or “ holders” of said bill of exchange at the commencement of the suit.

On the pleadings the plaintiff moved for judgment.

Charles F. Sanford, for the motion,

cited in answer to the first point on the demurrer, Loper a. Welch ( 3 Duer, 644 ); Oecks a. Cook (3 Ib., 161). As to the second point, Benson a. Couchman (1 Code R., 119); Appleby a. Elkins ( 2 Sandf., 673 ; S. C., 2 Code R., 80); Taylor a. Corbiere (8 How. Pr. R., 385); Loomis a. Dorsheimer (8 Ib., 9); Bank of Lowville a. Edwards (1 Ib., 216); Catlin a. Gunter ( 1 Duer, 253 ).

A complaint by plaintiffs, as indorsees of a bill of exchange, which alleges the drawing of the bill (describing it), a delivery of it to the payee, “ who then and there indorsed it and delivered it so indorsed, and thereafter and before "maturity, the same came lawfully into the possession of these plaintiffs for value;” that it is past due and wholly unpaid, “ and the defendants are now jointly indebted to these plaintiffs thereon in the sum of $1200, with interest;” states facts sufficient to constitute a cause of action.

As to the objections that the plaintiffs are not alleged to be partners, or joint owners of the note, and do not show how they got title, it is sufficient to say that the allegations that the bill after it had been indorsed and delivered by payee, and before maturity “ came lawfully into the possession of these plaintiffs for value,” cannot be true, unless they obtained it from some one having lawful right to dispose of it. It is a short mode of

p. 209

averring the fact of actual ownership. That averment is sufficient on demurrer. If the declaration is deemed defective in form, the remedy is under section 160 of the Code. (Prindle a. Caruthers, 1 E. P. Smith's (15 N. Y) R., 425-431.)

Such a complaint having been held by reported cases to be sufficient, a demurrer to it on the ground that, it does not state facts sufficient to constitute a cause of action, must be treated as frivolous, although it might not be held frivolous if the question were res nova. (Griswold a. Laverty, 12 N. Y.Leg. Obs., 316 ; S. C., 3 Duer, 690 ; Price a. McClure, 3 Abbotts' Pr. R., 253; S. C., 5 Duer, 670 , note.)

Judgment ordered for plaintiffs, on account of the frivolousness of the demurrer.