Gurnee v. Beach

Barker, J. It was necessary for the plaintiffs to set forth in their complaint every fact which they must prove to enable them to recover judgment against the defendants. As the plaintiffs were not original parties to the note they can have no right of action thereon unless they have acquired a title thereto subsequent to its delivery. It is not alleged in the complaint that they are the owners of the note, nor [110] does it contain any averment of a fact from which the law infers-that they are the owners of the fame. The original payee was the defendant Jessup, in whom the title to the note and the right of action against the maker upon his promise vested, on the making and delivery of the note. The averment that Jessup duly indorsed the note after its delivery to him was doubtless sufficient' for the purpose of showing that he had parted with his title and possession,, but there is a failure to state that the plaintiffs were such indorsees, or that they are the owners of the note founded upon' a derivative title, and a title in them cannot be legally inferred from the mere fact that the payee has parted with his title. No case has been cited nor have we discovered any in our examination which goes so far as to hold that the averments. contained in this complaint are sufficient to show that these plaintiffs are the owners of the note. The rule which is stated in some of the cases, that an averment that the payee has indorsed the note, imports a delivery by him of the note does not meet the specific objection made to the sufficiency of this complaint, that it does not aver a title to the note in the plaintiffs. The fact that the payee has parted with his title and made a delivery of the note does not justify the legal inference that the plaintiffs are the persons who have acquired such title. Any other person in an action in his name against these defendants,, could in his complaint allege all the facts which are set forth in this, and swear to the truth of the same by the usual affidavit of verification, and not be guilty of perjury. (Parker v. Totten, 10 How., 233.) The complaint in the case of New York Marbled Iron Works v. Smith (4 Duer, 362), contained averments as to the making and indorsement of a note similiar to those set forth in the plaintiffs’ complaint, but they were followed by an allegation that the note was held and owned by the plaintiff, and the court held that the facts alleged were sufficient to show that the plaintiff had title to the note in suit. In Burrall v. De Groot (5 Duer, 379), the averment was to the effect that the payee indorsed a note in blank and that the same, so indorsed, was delivered to the plaintiff, “ who now holds and owns the same.” Neither of these cases sustain the plaintiffs’ argument. [111] While tbe averments that tbe payee indorsed tbe note imports tbat be bas delivered it to another and parted with bis title, it cannot be inferred therefrom tbat the transfer was to tbe plaintiff, for that is another" and a distinct fact which must be set forth in the complaint, that it may appear that the plaintiff is interested in the cause of action. The plaintiffs’ claim of title is an issuable fact, and it must be set forth in such form that the samé can be met with a denial. In averring the fact of ownership no particular form is necessary, but the fact must be unequivocally stated. The judgment is reversed, with costs of this appeal, and the demurrer sustained with costs, with leave to the plaintiffs to amend their complaint on the payment of .costs of the appeal and demurrer within twenty days after taxation and notice. Smith, P. J., Haight and Bradley, JJ., concurred. Interlocutory judgment and order reversed and demurrer sustained, with leave to the plaintiffs to amend complaint within twenty days on payment of costs of this appeal and this demurrer.