Phelps v. Ferguson — 19 How. Pr. 143

Majority

p. 143

NEW YORK SUPERIOR COURT.

John A. Phelps and others agt. James A. Ferguson.

Headnote

Sufficiency of allegations in a complaint by plaintiffs as indorsers of a bill of exchange.

Special Term,

October, 1859.

A complaint by plaintiffs, as indorsers 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 endorsed, and thereafter, and before maturity, the same came lawfully into the possession of these plaintiffs for

p. 144

value;” that it is past due, and wholly unpaid ; “ and the defendants are now jointly indebted to these plaintiffs thereon in the sum of $1,200, 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 allegation that the bill, after it had been indorsed and delivered by the payee, and before maturity, “ came lawfully into the possession of the plaintiff for value,” cannot be true, unless they obtained it from some one having lawful right to dispose of it. Ij. is a short mode of 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 agt. Caruthers, 1 N. Y. R., 425-431.)

Such a complaint being held by reported cases to be sufficient, a demurrer to it, oh 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 frivolous, if the question were res nova. (Griswold vs. Laverty, 12 Leg. Obs., 316, s. c., 3 Duer, 690 , and Price agt. McClave, 5 Duer, 670 , note.)

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