Majority
p. 377SUPREME COURT. F. M. St. John agt. Orin Beers. Albany Special Term, December, 1862.
Headnote
Where the action was upon promissory notes assigned to the plaintiff, and for goods sold, held, that the plaintiff might properly allege in his complaint that, on his “information and belief,” the notes were executed by the defendant, and on his “information and belief,” the goods were sold to the defendant.The complaint set forth three separate causes of action: 1st. A note payable to E. L. B., or bearer, made by defendant and assigned to Plaintiff.
p. 378
2d. A note payable to J. W. H., or bearer, made by defendant and assigned to plaintiff.
The plaintiff stated, on his information and belief, that the defendant executed these notes, &c.
The 3d count was for goods sold and delivered by plaintiff to the defendant, upon the information and belief of plaintiff, on which the plaintiff claimed a balance.-
The defendant moved to strike out the .words, “ information and belief,” wherever they occurred; also to make the complaint more certain by stating the time when the notes were assigned, and the time of the sale of the goods, and the kind of goods, with costs of motion.
C. V. R. Ludington, for the motion.
A. C. Niven, opposed.
The plaintiff has very properly stated the making of the two notes on his “ information and belief.” They being payable to other persons and assigned to him, he could properly only state the making of them on his “information and belief.”
There is no objection to stating the sale of the goods on “ information and belief,” as they may have been sold by his clerk or agent, and not by himself personally; and as to the time of sale and the specific articles sold, it was not necessary to make a motion for that purpose, as an application for the particulars of plaintiff's demand would have attained the object.
Motion denied, with ten dollars costs-.