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First National Bank v. Stallo

160 A.D. 702 Court First Department, Decision date 1914-02-06 English

Delivered by Laughlin, J.:

Contents

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The First National Bank of Pittsburgh, Respondent, v. Edmund K. Stallo and Nash Rockwood, Appellants.
First Department,
February 6, 1914.

Headnote

Pleading — action on promissory note — complaint stating cause of action.
A complaint in an action upon a promissory note which in substance ' alleges that on or about a certain date the defendants made their promissory note whereby they promised to pay to the order of the plaintiff a certain sum of money on a certain date with interest at six per cent, but that no part thereof has been paid, states a cause of action.
The allegation that the note was “made” by the defendants is equivalent to an allegation that it was both signed and delivered to take effect as a negotiable instrument.
The allegation that the note was made payable to the order of the plaintiff shows that delivery was made to him and also ownership. It is not necessary that the plaintiff further allege that he has not parted with possession or title.
■ Nor is it necessary that the complaint allege that there was a consideration for the note, as that is presumed.
Nor need the plaintiff, having demanded judgment for the face of the note, with interest, allege the amount due where there is an allegation that no part of the note had been paid and that it is overdue.
Appeal by the defendants, Edmund K. Stallo and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 6th day of November, 1913, overruling their demurrer to the complaint, the issue of law having been brought on as a contested motion pursuant to notice under section 547 of the Code of Civil Procedure.
Rockwood & Haldane, for the appellants.
John A. Garver [Chauncey B. Garver with him on the brief], for the respondent.

The sole ground of the demurrer is that the complaint does not' state facts sufficient to constitute a cause of action. The complaint is on a promissory note, and excluding the allegation to the effect that the plaintiff is a national banking corporation and the prayer for relief, the allegations of the com

p. 703
plaint are comprised in seven lines of the record. Such unusual brevity in pleading merits the commendation of the court, and although on a casual examination it seemed to some of us that a material allegation was omitted, yet on further consideration we are of opinion that the sufficiency of the complaint is sustained by decisions which have been accepted as authority for such a length of time that they should be acquiesced in now, even though were it not for these precedents we might require a further express allegation showing possession and ownership' of the note at the time the action was brought.

The plaintiff does not set forth a copy of the note pursuant to the provisions of section 534 of the Code of Civil Procedure, which would render its pleading sufficient by merely alleging the amount due to it on the note. It merely alleges as follows: “ On or about August 15, 1911, the defendants made their certain promissory note, dated on that day, whereby they promised to pay to the order of the plaintiff Seven thousand five hundred dollars ($7,500) on December 15, 1912, with interest at the rate of six per cent per annum, but no part thereof has been paid.”

The allegation that the promissory note was made by the defendants is equivalent to an allegation, and imports, not only that it was signed but also that it was delivered to take effect as a negotiable instrument. (8 Cyc. 99, 100; Daniel Neg. Inst. [6th ed.] § 63; Peets v. Bratt, 6 Barb. 662 ; Chappell v. Bissell, 10 How. Pr. 274 ; Burrall v. De Groot, 5 Duer, 379 ; Prindle v. Caruthers, 15 N. Y. 425 ; Keteltas v. Myers, 19 id. 231, 232; Bank of Lowville v. Edwards, 11 How. Pr. 216 ; Connecticut Bank v. Smith, 9 Abb. Pr. 168 ; Abb. Tr. Brief Pl. [2d ed.] p. 320. See, also, Hood v. Hoffman, 132 App. Div. 923 .) The allegation that the note was made payable to the order of the plaintiff shows that the delivery was to it, and sufficiently shows its ownership; and it was not incumbent upon it, under the authorities, to further allege that it had not parted with possession or title, for those facts will be presumed in the first ■ instance. (8 Cyc. 124; Niblo v. Harrison, 7 Abb. Pr. 447 ; Mitchell v. Hyde, 12 How. Pr. 460 ; Taylor v. Corbiere, 8 id. 385; Appleby v. Elkins, 2 Sandf. 673 ; Peets v. Bratt, supra; Connecticut Bank v. Smith, supra; Chappell v. Bissell,

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supra; Dart v. Van Horn, 63 Misc. Rep. 119 ; Pryce v. Jordan, 69 Cal. 569 ; Wilkins v. McGuire, 2 App. Cas. D. C. 448, 453. See, also, Beach v. Gallup, 2 Code Rep. 66 .) It is not alleged that there was any consideration for the note; but it is presumed that there was a consideration for the issuance of a negotiable instrument. (Neg. Inst. Law [Consol. Laws, chap. 38; Laws of 1909, chap. 43], § 50; 8 Cyc. 109; Underhill v. Phillips, 10 Hun, 591 .) The demand for judgment is for the face of the note together with interest thereon. A further criticism of the complaint is made, in that the amount due to the plaintiff is not specifically alleged; hut it is alleged that no part of the note has been paid, and it necessarily follows that it is all due, since the due date passed before the commencement of the action.

It follows, .therefore, that the order should be affirmed, with ten dollars costs and disbursements.

Ingraham, P. J., McLaughlin, Dowling and Hotchkiss, JJ., concurred.

Order affirmed, with ten dollars costs and disbursements.

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