McGrath v. Pitkin

Schuchman, J. The complaint sets forth three causes of action-on promissory notes, which were made by the defendant, to the order of one Nielson, who indorsed and delivered them to the plaintiff. The answer admits the allegations set forth in the first, fourth, and seventh paragraphs of the complaint, among which are that, the notes were given for a good and valuable consideration, and then sets up the defense of a want of consideration in the making of the note and a counterclaim or offset against the payee as if the holder was not an innocent holder before maturity, and also sets, up the affirmative defense of payment. The plaintiff interposes a demurrer in the following language: “ The plaintiff hereby demurs to the defenses consisting of new matter and the counterclaim contained in the defendant’s answer, on the ground that they and each of them are insufficient in law upon the face thereof.” The court at Special Term overruled the demurrer, with leave- • to the plaintiff to amend on payment of costs. The defendant-respondent invokes the rule that before a demurrer to the answer is considered, the first pleading is to be looked into. [863] He claims that the complaint does not set forth that the plaintiff is a holder before maturity and that, therefore, he cannot object to any defense which is good against the payee. The complaint is good and sufficient; it need not allege that the note was indorsed to the plaintiff before maturity. The presumption of law is that when the payee indorses and delivers the note to another, the latter is a 6ona fide holder for value, and the burden of proof is upon the maker, in regard to want of failure of consideration between the maker and the payee. Mechanics & Traders’ Bank v. Crow, 60 N. Y. 85. The want of consideration and separate defense firstly set up in the answer are insufficient; the separate defense of payment is good and sufficient. It does not aver to whom payment was made, hut if an answer is not sufficiently definite or specific and certain, the remedy is by motion. Farmers & Citizens’ Bank v. Sherman, 6 Bosw. 181; Hubener v. Sims, 2 Law Bull. 64. The rule of law is that if a demurrer is taken to several defenses and only one is good, the demurrer will be overruled. Ross v. Duffy, 12 N. Y. St. Repr. 584. Interlocutory judgment and order appealed from affirmed, with costs. Fitzsimons, Ch. J., and Conlan, J., concur. Judgment and order affirmed, with costs.