Oishei v. Craven

Hatch, J. The pleading is upon a promissory note and is in attempted compliance with section 534, Code. It jvrst alleges that on a given date defendant for value made and. delivered his promissory note to one Vend ello. It then sets out the note: Buffalo, N. V., December 29, 1893. “ Six months after date I promise to pay to*the order of M. - Vendello three hundred and thirty-one ($331.02) dollars and two cents at Third National Bank, Buffalo, N. T. Value received. J. B, Graver.” Second, alleges that on or about the 20th day of February, 1894, said note was “assigned, transferred, delivered and indorsed ” to the plaintiff. Third. That no part of the said note, which is due, has been paid; that on the' 2d day of July, 1894, it was protested for nonpayment, “ all to the damage of the plaintiff in the sum of $332.23,” and interest from said second of July. Then [140] demands judgment for the last-mentioned sum, with interest and costs. The first objection is, that it is not alleged that the owner ever transferred the note to plaintiff. But it is alleged that the note was assigned, transferred, delivered. and indorsed to the plaintiff. This allegation creates the presumption that the note was lawfully delivered and that plaintiff has title. In Prindle v. Caruthers, 15 N. Y. 431, the allegation was' that’ the contract became plaintiff’s property by purchase, and the.. court sáy: “ The allegation cannot be true unless he purchased of the parties, having the lawful right to dispose. The whole matter- will be. capable of litigation on the trial.”' Legally this note. could not be, assigned and delivered to plaintiff except by one having right and title so to do. . But it ‘is riot necessary'to’ allege this ; it is sufficient to aver the fact of assignment and delivery.’ So, in Hays v. Hathorn, 74 N. Y. 491, it is said “the production of the paper by him was prima facie evidence that it had been delivered to him by the payee and that he had title to it.” These are- cases. upon which defendant relies. But this doctrine supports the allegation of the Complaint.' ■ It is not necessary tó allege consideration for the assignment, for if it be the fact that it is assigned it is of n'o: consequence whether it be for Value or not. Certainly the maker cannot complain. It. is said that the complaint does not allege the facts required by section 534 of the Code, in that it fails to state that there is due the plaintiff on this note the sum named therein or any other sum.' This is true, but it does not follow that the complaint is bad for that reason. It does allege that the note is due and that no part of it has been paid; that it has been protested, all of which Las damaged the plaintiff $332.23, for which sum and interest judgment is. demanded. We have no difficulty in spelling out of this allegation that defendant has made default in payment of his note or any part of it, and that he is now owing thereon, and that plaintiff is. entitled to the sum' due. It does not comply with section 534, Code, because it does not,state in place of “ to the damage,” etc.,. “ that there is due [141] to plaintiff thereon.” - But it does, imperfectly and poorly, yet sufficiently, comply with section 481 in that it does, coupled with the other állegations, state a cause of action. Smith v. Fellows, 26 Hun, 384; Vogle v. Kirby, 4 N. Y. Supp. 99; Keteltas v. Myers, 19 N. Y. 231; Sanders v. Soutter, 126 id. 193. Judgment should be ordered for plaintiff on the demurrer, with costs, with leave to defendant to answer in twenty days on payment of costs. Titus, Ch. J., and White, J., concur. Demurrer overruled and judgment ordered for plaintiff, with costs, with leave to defendant to answer in twenty days on payment of costs.