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Dart v. Van Horn

115 N.Y.S. 1056 Court N.Y. Sup. Ct. English

Delivered by GIEGERICH, J.

Contents

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p. 1056
DART v. VAN HORN et ux.
(Supreme Court, Special Term, New York County.
April, 1909.)

Headnote

1. Bills and Notes (§ 467[1] )—Action by Payee—Complaint—Sufficiency.
In an action by the payee of a note against the maker, the complaint, alleging that plaintiff is the owner of the note, sufficiently alleges his ownership.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 1481; Dec. Dig. § 467.*]
2. Bills and Notes (§ 467*)—Action by Payee—Complaint—Sufficiency.
The complaint in an action by the payee of a note against the maker, which alleges that plaintiff is the owner of the note, need not allege that he is also the holder thereof.
[Ed. Note.—For other cases, see Bills and Notes, Dec. Dig. § 467.*]
Action by Edward Dart against Alfred Van Horn and wife. On demurrer by -defendant Alfred Van Horn to the complaint. Overruled.
p. 1057
Charles P. Bogart, for plaintiff.
Alfred Van Horn, in pro. per.

The action is by the payee of a promissory note against the maker, who demurs to the complaint for insufficiency. The demurrant contends that the allegation that the plaintiff is the owner of the note is a mere conclusion, but a similar averment has been held to be sufficient. Gurnee v. Beach, 40 Hun, 108 ; Maccarone v. Hayes, 85 App. Div. 41 , 82 N. Y. Supp. 1005 .

It is further urged that the complaint is insufficient because it fails to allege that the plaintiff is also the holder of the note; but it is not necessary to allege, in a complaint by a payee of a promissory note against the maker, that the plaintiff has not parted with the note, or that he is the holder. Niblo v. Harrison, 7 Abb. Prac. 447 ; Taylor v. Corbiere, 8 How. Prac. 385. In the case last cited Mr. Justice Harris, at page 388, pertinently observes:

“It certainly could not be required of him that he should aver, negatively, that since the note was transferred to him he had not transferred it to another person. It is enough that he has averred everything which it would be necessary to prove on the trial, if controverted, to entitle him to recover.”

The demurrer is therefore overruled, with costs, with leave to withdraw the same and to answer upon payment of such costs within 20 days after the service of the interlocutory judgment to be entered hereon, with notice of entry thereof.