Continental Bank v. Bramhall — 23 N.Y. Super. Ct. 595

Majority

p. 595

The Continental Bank, Plaintiffs and Respondents, v. Moses B. Bramhall, Defendant and Appellant.

Headnote

Under section 162 of the Code of Procedure, a complaint against the maker of a promissory note is sufficient where it sets forth a copy of the note, and alleges that a specified sum is due thereon from the defendant to the plaintiff, although the note is, by its terms, payable to a third person, and there is no allegation of an indorsement by him.

(Before Bosworth, Ch. J., and Robertson and Barbour, J. J.)

Submitted, December 13;

decided, December 27, 1862.

This was an appeal from a judgment rendered in favor of the plaintiff against the defendant, upon motion, on the ground of the frivolousness of a demurrer.

The complaint, which named “The Continental Bank” as the plaintiff, alleged that- the defendant made his promissory note, of which a copy was set forth and by which it appeared that it was payable “ to the order of IT. A. Murdock, Prest.,” and further alleged that the defendant, for value received, delivered it to this plaintiff, which it alleged to be a duly authorized corporation, and added, in the usual form, an allegation that the plaintiff was now the owner and holder, and that defendant had not paid it, and that there was due a specified amount thereon. Two other notes, in similar terms, were set forth in the same way.

The defendant demurred to the complaint, assigning as ground thereof, that it did not state facts sufficient to constitute a cause of action.

The plaintiff moved at Chambers, in July, 1862, before Mr. Justice Mokell, for judgment on the pleadings, under section 247 of the Code of Procedure, on account of the frivolousness of the demurrer, and the motion having been

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granted, the defendant appealed to the Court at general term.

John Slosson, for the defendant, appellant.

I. The complaint should have averred that the note was indorsed by the payee. (Edwards on Bills, 684; Morgan v. Bank of State of N. Y., 1 Duer, 434 ; affirmed, 1 Kern., 404; 1 R. S., 768, § 1; Canal Bank v. Bank of Albany, 1 Hill, 287 .)

II. It alleges no excuse for the want of indorsement, .such as that the name of the payee was fictitious, or that he was the president of the plaintiffs.

III. Averment of delivery does not dispense with the necessity of an indorsement. (3 Kent, 9th ed., 116, note, citing 17 Conn., 511 ; 3 Sandf. Ch., 77 .)

IV. The allegation of ownership does not answer the objection, for even if the property in the note passed by delivery, an indorsement is still the condition of payment, or there must be some proof to obviate its necessity.

V. Even if delivery be sufficient to pass the property, it will not justify a.suit on the note without indorsement. The action must be on the original consideration, and this complaint is nothing else than a declaration on the note itself, and the possession of it, which possession is all the plaintiff insists on as entitling him to a recovery. (Chitty on Bills, 5th Am. ed., 227.)

William Allen Butler, for the plaintiffs, respondents.

Cited, Code, § 162; Prindle v. Caruthers, (15 N. Y. R., 425;) Keteltas v. Myers, (19 Id., 231;) Holstein v. Rice, ( 15 How. Pr., 1 ;) Haight v. Holley, ( 3 Wend., 263 .)

In the 162d section of the Code ;it is pro.vided that in an action or defense, founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum, which he claims. This was held, in

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Prindle v. Caruthers, (15 N. Y. R., 425,) to create an exception to the general rules of pleading prescribed by section 142, requiring a statement of the facts constituting a cause of action. A similar provision formerly existed relative to suits on contract upon any written instrument or record. (Laws of 1840, p. 333, § 17, and Rule 99, of Supreme Court Rules, of May Term, 1845.)

In the case of Alder v. Bloomingdale, ( 1 Duer, 602 ,) it was held that the contract of an indorser was not simply for the payment of money within the meaning of section 162, the liability being conditional, and demand and notice being essential to fix it upon the indorser. The Supreme Court of this District, however, considered the name of the indorser written on the copy as an indorsement, and all allegations of demand and notice superfluous. (Roberts v. Morison, 11 N. Y. Leg. Obs., 610 .). In Lord v. Chesebrough, (4 Sandf. S. C., 696; 1 Code R. N. S., 322,) in this Court, the name of the indorser, who was the maker, appeared, and it was alleged to have been indorsed, and that a certain sum was due to the plaintiff; but it was held to be insufficient, for not showing how he acquired title to it. But I apprehend that Prindle v. Caruthers overrules that view, which was taken in that case by the Supreme Court, ( 10 How., 33 ,) as has been held by this Court in Butchers’ & Drovers’ Bank v. Jacobson, (15 Abbotts’ Pr., 218.) The case of Keteltas v. Myers, (19 N. Y. R., 231,) is also to the same effect.

The judgment and order must, therefore, be affirmed, with costs.

This complaint is clearly insufficient in substance, unless it is within section 162 of the Code, and, by force of that, sufficient.

It neither alleges an indorsement by the payee, nor a demand of payment before suit brought. (Merritt v. Todd, 23 N. Y. R., 28.)

But Prindle v. Caruthers (15 N. Y. R., 425) is to the point, that the complaint is good as a pleading, under § 162

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of the Code. That declares, that a complaint'on such an instrument is sufficient, where it sets forth a copy of it, qnd alleges that a specified sum is due thereon, to the plaintiff. All that is done in this complaint. Judgment should be affirmed.