Storer v. Times Print. & Pub. Co.

Dwight, J. The judgment was entered under section 1778 of the Code of Civil Procedure for want of a judge’s order to accompany the answer of the defendant, which is a domestic corporation. The action was on a promissory note made by one Merritt, and indorsed by the defendant corporation. The only question in the case is whether the statutory provison referred to applies to a corporation liable, if at all, only as indorser of a promissory note. The text of the provision is as follows: “In an action against a domestic or foreign corporation to recover damages for the non-payment of a promissory note or 64 other evidence of debt for the absolute payment of money upon demand or at 'a particular time, * * * unless the defendant serves, with a copy of his answer or demurrer, a copy of an order of a judge directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default of pleading, at the expiration of twenty days,” etc. This provision of statute is plainly in derogation of the common law, and must therefore be strictly construed. Bradley v. Fertilizing Co., 2 Civ. Proc. R. 50; Barr Co. v. Kuntz Co., 18 Abb. N. C. 476. It is a provision which authorizes a plaintiff to disregard the answer of the defendant, though it consists of a general denial, and be supported by a solemn verification, and to enter judgment, notwithstanding such answer, without so muchas an application to the court. Such a statute will not be extended beyond the strict limitation of the terms employed. By the original act of 1825, (chapter 825, § 4,) the analogous provision was applied to every suit prosecuted against any incorporated company “upon any contract, note, or other evidence of debt.” When the provision was incorporated into the Revised Statutes, the word “contract” was stricken out, and the words, “for the absolute payment of money upon demand or at any particular time” were added after “evidence of debt,” and the provision of the Code of Civil Procedure retains the modification introduced by the Revised Statutes. This modification is of great significance, as indicating an intention to circumscribe the application of the rule of practice; and yet, even under the original provision, it was held by the supreme court in two cases that it had application only to an action upon some instrument which was in itself per se evidence of debt. Anon. 6 Cow. 41; Tyler v. Insurance Co., 2 Wend. 280. These cases were commented upon and approved in the case of Insurance Co. v. Insurance Co., 88 N. Y. 424; and in that case the rule of the application of the statute is stated as follows: “The provision applies only to instruments which admit, on their face, an existing debt payable absolutely.” The rule, thus stated, we think, clearly excludes the case of an action against the indorser of a promissory note. The contract of indorsement is not “an instrument which is of itself per se evidence of debt.” It is not “an instrument which admits, on its face, an existing debt payable absolutely. ” The liability of an indorser is not absolute, but contingent. It is not established by production and proof of the instrument upon which the indorsement is borne, and of the indorsement itself. It requires proof, aliunde the instrument, of presentation to the maker, demand of payment, non-payment, and notice thereof to the indorser, to show that the contingent liability has become absolute; and none of this proof appears on the face of the instrument, nor of the indorsement. We have been referred to no case, and know of none, in which the provision in question has been applied to the case of an indorser. The case cited by counsel for th’e respondent, in which it was applied to an action on a policy of life insurance, (Studwell v. Insurance Co., 19 Hun, 127,) was expressly overruled in the case of Insurance Co. v. Insurance Co., supra. We think the practice of the plaintiff in entering the judgment was unwarranted by the statute, and that the motion to vacate the judgment was improperly denied. The order of the county court should be reversed, and the motion granted, with costs of the motion and of the appeal. All concur. So ordered, with §10 costs of the motion, and §10 costs, and the disbursements of this appeal.