Manheimer v. Levy — 19 N.Y. St. Rep. 682

Majority

p. 682

Samuel Manheimer, Pl’ff, v. Louis Levy, Def't.

(City Court of New York, Special Term,

Filed December 18, 1888.)

Headnote

1. Non-negotiable note—Complaint—Demurrer for insufficient' averment of transfer overruled.

In an action brought by a stranger on a non-negotiable note, au’allegation in the complaint that “the payee indorsed, and delivered the note,” etc., is a sufficient averment of transfer of title to the holder. A demurrer to the complaint on the ground of insufficient averment in that respect will be overruled, and judgment entered on the demurrer.

2. Non-negotiable note passes on delivery.

A non-negotiable note is a chose in action and passes on delivery, if such is the intention of the parties.

The note sued on is non-negotiable, and the-question is whether, in an action brought by a stranger to-the note, an allegation that “the payee indorsed and delivered the note,” etc., is a sufficient averment of transfer of title to the person to whom the delivery was made.

The title to a non-negotiable instrument -will pass by delivery and without indorsement (Loftus v. Clark, 1 Hilt., 310), and without any formal assignment. Hastings v. McKinley, 1 E. D. Smith, 273. The indorsement of a nonnegotiable instrument is a good equitable assignment. Lenx v. Jansen, 18 How. Pr., 265 .

The court of appeals has held that an allegation that a, non-negotiable instrument was indorsed and delivered was-sufficient to admit evidence that the note was duly assigned by the payee. Brown v. Richardson, 20 N. Y., 472 .

The obligation is at most a mere chose in action, and title thereto passes by delivery, if such was the intention of the parties, and the complaint sufficiently alleges a valid, transfer under the authorities.

The motion for judgment on the demurrer was properly granted and the motion for a re-argument must be denied-