Metropolitan Bank v. Lord

Boswobth, J. The third and fourth defences, so called, consist, neither of denials of any allegations in the complaint, nor of any averments of new matter: the insertion of them in the answer is an attempt to demur to, as well as to answer the complaint. Neither of them, however, states objections, which would sustain a formal demurrer, assigning them as causes of demurrer. (The Union Mutual Ins. Co. v. Osgood 12 Leg. Obs. 85). An action must be brought in the name of the real party in interest. (Code, § 111). To make title to the note, the indorsement of it by Searls, and a delivery of it to the plaintiffs, and that they are the holders and owners of it, are averred. It is not directly alleged that Searls delivered it to the fladntiffs. If the complaint can be construed as meaning that, then that allegation is denied, and the answer also avers, that on the contrary, it was delivered by him to the Suffolk Bank. If it does not mean that, then there is no averment that it was delivered to the plaintiffs by any one shown to have a right to deliver it, unless it be the further allegation that the plaintiffs are the owners and holders of such note. But this is put in issue by the answer. The answer denies it, in a manner allowed by the Code. The allegations made to show that the title to the note is in the plaintiffs, are controverted by the [187] answer. If the issues made by the denial of these allegations should be found in favor of the defendant, the plaintiff could not recover. The answer, in this view of it, is clearly not frivolous.