PART III.

COMPLAINTS IN COMMON LAW ACTIONS.

(1.) ON INSTRUMENT FOR PAYMENT OF MONEY UNDER SECTION 162 OF THE CODE.'

(No. 1.)

On a note or bond, for payment of money only, between the parties thereto.

SUPREME COURT-RENSSELAER COUNTY.

A. B.
agt.

C. D. and E. F.

The plaintiff complains of the defendants, that they jointly and severally executed to him a promissory note (or bond, &c., &c.), of which the following is a copy: [Set forth the note, bond or other written instrument.]

And the plaintiff states, that there is due to him thereon, from the defendants, the sum of $506, with

1 By section 162, a complaint on a written instrument, for the payment of money only, is sufficient if it set forth a copy of the instrument, with a statement of the amount due thereon for which the plaintiff demands judgment. As to cases in which this form of complaint can properly be used, see note to No. 3, post, p. 358; also Pleadings, 226 to 233; Marshall v. Rockwood, 12 How., 453.

RENSSELAER COUNTY, ss: A. B., the abovenamed plaintiff, being duly sworn, says, that the foregoing complaint is true of his own knowledge, except the matters therein set forth on information and belief, and as to those matters he believes it to be true.

Subscribed and sworn before me, this

1st day of December, 1856.

E. B.,

A. B.

Commissioners of Deeds, Troy, N. Y.

[Or the following more concise form may be used.]

SUPREME COURT-WASHINGTON COUNTY.

A. B.
agt.
C. D.

The plaintiff alleges, that there is due him, from the defendant in this action, the sum of $500, with interest from, &c., for which he demands judgment, with costs, on a promissory note, of which the following is a copy: [Set forth copy of note.]

Verification by Attorney.

E. F.,

Plaintiff's Attorney.

WASHINGTON COUNTY, ss: E. F., being duly sworn, says, that he is attorney for the plaintiff in the above entitled

action; that the promissory note, on which this action is brought, is in the possession of deponent; that the foregoing complaint is true of his own knowledge, except the matters therein set forth on information and belief, and as to those matters he believes it to be true; that his knowledge is derived from the defendant, who has admitted, in presence of deponent, that he executed said note and that nothing has been paid thereon [or that deponent knows the handwriting of the defendant, &c., &c., or whatever else may be his knowledge, or the grounds of his belief.']

On bond for payment of money by executor, &c., of plaintiff.

SUPREME COURT- RENSSELAER COUNTY.

A. B. and C. D., executors, &c., of the last will and testament of A. D., deceased,

agt. E. F.

The plaintiffs complain that, as they are informed and believe, the defendant C. F. executed to A. D., in his life

1 Another verification by attorney is given ante, p. 239. As to the proper form of such a verification; see Treadwell v. Fassett (10 How. Pr. R., 184); People, ex rel. Smith, v. Allen (14 How., 334); see, also, Pleadings, 373, 357, 358.

time, a certain bond of which the following is a copy: [Set forth copy of bond.]

That said A. D. died on or about the 3d day of May, 1854, leaving a last will and testament, wherein said plaintiffs are named executors, and that said will has been duly admitted to probate by the surrogate of Rensselaer county, and letters testamentary were issued to said plaintiffs, on the, &c., by said surrogate, and said plaintiffs duly qualified to act as such executors. And they allege that there is due to them, as such executors, &c., from said defendant on said bond the sum of $1,000, with interest from the date of said bond, for which they demand judgment with costs of action.

J. K.,

Plaintiffs' Attorney.

(No. 3.)

By indorsee against copartners, on note signed in name of firm.

SUPREME COURT-COLUMBIA COUNTY.

A. B.
agt.

C. D. and E. F.

The plaintiff complains of the defendants, and alleges that they are partners in trade, under the copartnership name of C. D. & Co., and by such name executed a promissory note, of which the following is a copy: [Set forth copy of note.]

That the payee, for value, duly endorsed said note to the plaintiff, and he alleges that there is due thereon the sum of, &c., [as in No. 1.]1

1 The foregoing precedents are drawn under section 162 of the Code, which makes a mere copy of a written instrument for the payment of money only, with a statement of the amount due thereon, a sufficient complaint. That section, however, it would seem, does not in strictness apply to cases other than those where the parties to the action are the original parties to the contract. In most other cases it is still necessary to state such facts, outside of the instrument, as show the plaintiff's interest in or title to the contract, and his right of action against the present defendant. ( Bank of Geneva v Gulick, 8 How. Pr. R., 51; Marshall v. Rockwood, 12 How., 452.) Thus, in No. 2, a mere copy of the note would be insufficient, without averring the title of the plaintiffs as executors. And in the present case the copartnership of the defendants and the indorsement of note to plaintiff must be averred. So, if a bond has been executed by two joint obligors, and one has died, his death must be alleged in order to show the plaintiff's right to maintain the action against the survivor.

Many other examples might be given, but the foregoing are deemed sufficient, and may be readily adapted in practice to suit the circumstances of the particular case. For cases in which it is necessary to allege extrinsic facts to support the action in a complaint framed under section 162, see Pleadings, 226 to 233.

But see note to case of Pierce v. McClave, 5 Duer, 670 (maintaining the same doctrine), in which the Court of Appeals is said unanimously to have reversed the case of Prindle v. Caruthers (10 How., 33), for the reason that "If the complaint should be held insufficient as a common law pleading, on the ground that the plaintiff does not make title to the contract, it is sufficient under section 162 of the Code."