Stelling v. Grabowsky — 46 N.Y. St. Rep. 700

Majority

p. 700

Augusta Stelling, Resp’t, v. Louis R. Grabowsky, App’lt.

(Supreme Court, General Term, First Department,

Filed June 3, 1892.)

Headnote

1. Pleading—Non-joinder—Waiver of objection.

Where a defect in the parties appears on the face of the complaint an objection on that ground is waived if not taken by demurrer; it cannot betaken by answer.

3. Contract—Agreement to pat one of two persons.

As security for a loan defendant executed an instrument by which he promised to pay the amount thereof at any time to F. or to this plaintiff. Held, that it was immaterial whether the instrument was a promissory note or not; that it was a promise for value to pay F. or plaintiff, and F. having died, the plaintiff being in possession of the instrument could maintain an action thereon.

Motion for new trial, a verdict having been directed in favor of the plaintiff, and exceptions ordered to be heard in the first instance at the general term.

S. P. Potter, for app’lt; R. H. Smith, for resp’t.

This action was brought to recover upon an instrument in the following language:

“ New York, June 1, 1884.

“Louis R. Grabowsky.

“After date I promise to pay to the order of Anna R. Feldhausen or Augusta Stelling five hundred dollars, value received, with interest at the rate of four per cent, due any time.

“ (Signed) Louis R. Grabowsky.”

The defendant, by his amended answer, denied each and every allegation of the complaint; denied that the alleged instrument was a promissory note, and averred that on the face of the complaint it appeared that Anna R. Feldhausen or her personal representative was a proper and necessary party plaintiff or defendant-in this action, and that they were not parties, and that the plaintiff was not the real party in interest, and never was the owner and holder of the instrument, and that said Feldhausen was the-sole owner and possessor of the instrument, and continued in possession thereof up to the time of her death, which took place in New York in or about the latter part of the year 1887, and that she never sold, assigned or transferred the same to any person, and that she died intestate, and that no letters of administration were ever granted out of the surrogate’s court to any administrator of her estate; that the loan was made by said Feldhausen, and the plaintiff had nothing to do with it.

Upon the trial it appeared that the plaintiff resided with said Feldhausen, who was her aunt, a number of years, and that the-defendant made an application to the aunt to borrow $500; that the plaintiff did not want to consent to it at first, but that after-wards she did as a matter of friendship, and that she went to the bank and drew out the money, the bank account being in the joint names of said plaintiff and Feldhausen, and gave it to the-defendant, who gave the note for it, all the written part of which

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is in the handwriting of the defendant. It further appeared upon cross-examination that the plaintiff had lived with her aunt for twenty years; did all the housework and took care of her, and tended the store, a lamp, crockery and oil store; that she was not paid any wages, but what spending money she wanted she got, and that the bank account was in the German Savings Bank, and kept in their joint names. It further appeared from the testimony of the defendant that he paid the interest upon this note to Feldhausen, except the last two payments, which were made to the plaintiff, who signed receipts upon the back thereof.

Upon these facts, the court directed the j udgment in favor of the plaintiff, and ordered the exceptions to be heard in the first-instance at the general term.

It is claimed upon the part of the defendant upon this appeal that the defendant’s motion to dismiss on the ground that the administrator of Anna R. Feldhausen should have been made a. party ought to have been granted. It is apparent that such objection, if it existed, appeared upon the face of the complaint; and therefore should have been taken by demurrer, and if not so-taken is waived.

In fact the answer alleges that the defect appears upon the face of the complaint, and objection is attempted to be taken by answer, which could not be done under such circumstances. One of. the grounds of demurrer is that there is a defect of parties plaintiff or defendant, and it is provided by § 498 of the Code that when such objection does not appear upon the face of the complaint, it may be taken by answer; and by § 499 that if such objection is not taken either by demurrer or answer, the defendant is to be deemed to have waived it It appears distinctly that the objection, being apparent on the face of the complaint, could not be taken by answer, but must be by demurrer, and no such demurrer being interposed the objection was waived.

It is also urged that the alleged note is not a promissory note within the statute; that it is valid as a contract but not as a promissory note because of the contingency; ■ that the defendant has the right to choose which one of the payees he will pay; and it is conceded he is willing to pay the administrator of Mrs. Feldhausen, and that the court erred in directing a verdict for the plaintiff.

We do not see that any of these objections are well taken.

It is entirely immaterial whether the instrument in question is a promissory note or not. It is a promise upon the part of the defendant, for value, to pay to the plaintiff or to Mrs. Feldhausen. It is undoubtedly true that if he had paid this note to either it would have been a discharge as to the other; but he cannot use that option for the purpose of paying neither. The plaintiff is in possession of the note; her joint title thereto is not impeached; she is the sole survivor of the alternative payees and has the right to pursue the defendant for its payment. It is none of the defendant’s business as to whether the money advanced was the money of the plaintiff or of Mrs. Feldhausen. Mrs. Feldhausen chose to permit the note'to be given in that way, and the defend

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ant, of his own volition, cannot alter the contract. It was the manifest intention that either of the payees of that note should be entitled to collect, and that the discharge of either should dis■charge the obligation.

The exceptions should' be overruled and judgment entered in iavor of the plaintiff upon the verdict, with costs.

Barrett and O’Brien, JJ., concur.