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Barkley v. Muller

164 A.D. 351 Court First Department, Decision date 1914-11-06 English

Delivered by Dowling, J.:

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p. 351
Charles B. Barkley, Respondent, v. Joseph H. S. Muller and Others, Appellants.
First Department,
November 6, 1914.

Headnote

Bills and notes — transfer of part interest in promissory note — nature of obligation on promissory note — sufficiency of complaint.
In an action at law based upon a promissory note the obligation of the defendant is single and cannot be divided into parts.
Hence, a complaint which alleges that the defendant made a promissory note on a certain date, and that the payees thereafter and before maturity of said note indorsed a one-half interest therein and delivered the same to the plaintiff, who is now the owner and holder thereof, fails to state a cause of action at law.
Appeal by the defendants, Joseph H. S. Muller and others, 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 8th day of May, 1914, overruling separate demurrers by the several defendants to the complaint.
Arnold E. Davis [Roy M. Robinson with him on the brief], for the appellants.
Huger W. Jervey, for the respondent.

The complaint herein, after setting forth that the defendant Muller made his promissory note in writing on a certain date, whereby he promised to pay to the order of George B. Burch, at the Hudson Trust Company in the city of New York, the sum of $2,500 four months after said date, further proceeds to allege: “That the defendants George B. Burch and Sarah M. Burch, thereafter and before maturity of said note, for value, indorsed the one-half interest therein to and delivered the same to this plaintiff, who is now the owner and holder thereof. ”

By section 62 of the Negotiable Instruments Law (Consol. Laws, chap. 38; Laws of 1909, chap. 43) it is required that an indorsement must be of the entire instrument and that an indorsement which purports to transfer to the indorsee a part only of the amount payable is declared not to operate as a negotiation of the instrument. By section 60 of the same law, “negotiation” is defined as the transfer of an instrument from one person to another in such , manner as to constitute the

p. 352
transferee the holder thereof; where an instrument is payable to order it is negotiated by the indorsement of the holder completed by delivery. By section 2 of the same law the holder is defined as the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof. In King v. King ( 37 Misc. Rep. 63 ; affd., 73 App. Div. 547 ; appeal dismissed, 172 N. Y. 604 ) it was held that in an action at law upon a promissory note the obligation of the defendant is singlé and cannot he divided into parts, and that only one action can be maintained for the debt in its entirety. The present action being one at law, and containing no averments or prayer for relief appropriate in an action in equity, it follows that the complaint set forth no cause of action, and that the order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the demurrers of the defendants sustained, with ten dollars costs, with leave to the plaintiff to serve an amended complaint within twenty days upon payment of said costs.

Ingraham, P. J., Laughlin, Scott and Hotchkiss, JJ., concurred.

Order reversed, with ten dollars costs and disbursements, and motion denied and demurrers sustained, with ten dollars costs, with leave to plaintiff to amend on payment of costs.

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