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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.']
E. F. Subscribed and sworn before me, this 1st day of December, 1856.
Justice of the Peace.
On bond for payment of money by executor, fc., 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 lifetime, a certain bond of which the following is a copy : [Set forth copy of bond.]
1 Another verification by attorney is given ante, p. 239. As to the proper form of such a verification; see Treadwell o. Fassett (10 How. Pr. R., 184); People, ex rel. Smith, v. Allen (14 How., 334); see, also, Pleadings, 373, 357, 358.
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.
By indorsee against copartners, on note signed in name of
SUPREME COURT - COLUMBIA COUNTY.
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.]'
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."
( 2.) On Money INSTRUMENTS NOT UNDER SECTION 162 OF THE
Complaint against maker and endorser of note.
SUPREME COURT - ONTARIO COUNTY.
The plaintiff complains that the defendant, C. D., on the 1st day of September, 1856, at Geneva, in said county, by his promissory note in writing, for value received, promised to pay to the defendant, E. F., or order, the sum of $500, two months from the date thereof, at the Ocean Bank, in the city of New York, and that said payee thereupon
endorsed said note to the defendant, G. H., who, afterwards, and before the commencement of this action, endorsed the same to the plaintiff, and said plaintiff is now the lawful holder and owner thereof." That when said note
" This allegation is usually inserted in complaints upon notes and other written instruments, although it is entirely unnecessary, and indeed superfluous. It is the mere allegation of a conclusion of law, which will, of itself, show no right in the plaintiff to maintain the action. (Thomas v. Desmond, 12 How., 321.) That right must appear from the facts stated in the complaint. Thus, in case of a promissory note, &c., payable to order, the complaint must allege that the payee endorsed the note to the plaintiff. ( White o. Brown, 14 How., 282.) Such an averment implies not only the writing of the endorser's name on the back of the instrument, but its delivery to the endorsee. (Griswold v. Laverty, 10 Leg. Obs., 316; New-York Marbled Iron Works v. Smith, 4 Duer, 362; Burrill v. De Groot, 5 Duer, 379.) The same is true as to an averment that a party “mado” a promis
became due and payable, the payment thereof was duly demanded at the said Ocean Bank,' and refused, and the same was thereupon duly protested for non-payment, and notice thereof duly given to the said endorsers ;? and that said defendants have never paid the said note, or any part thereof.
Wherefore the plaintiff demands judgment against the defendants for the sum of $500, with interest thereon from the 4th day of November, 1856, with seventy-five cents fees for protests, besides the costs of this action.s
sory note in writing ; it is equivalent to saying that he signed it and delivered it to the payees. (Ibid.) A promissory note payable to bearer, or endorsed in blank, may be transferred by delivery merely; and such an allegation, therefore, namely, that it was sold or assigned, and delivered to the plaintiff, &c., would be sufficient.
1 This averment in a complaint, on a note payable at a particular bank, of presentment at that place, is not absolutely necessary, though always properly inserted, even if the defendant has funds ready, at the place specified, to meet the note; it seems, since the Code, that a general averment that the note was “duly presented” and “duly demanded” is sufficient. ( Adams v. Sherrill, 14 How., 297; Gay t. Paine, 5 How. Pr. R., 107.)
? This is an essential averment in an action on a promissory note to change the endorsers (1 Code R., 102; 7 Leg. Obs., 23 ), although it is not essential to allege that the note is still unpaid. ( Maynard o. Talcott, 11 Barb., 365.) But an averment that a note was protested is not equivalent to an averment that it was duly presented for payment to the maker, and payment refused. ( Pierce v. McClave, 5 Duer, 670; Schultz v. De Puy, 3 Abbott, 252. )
3 If the action had been brought against the maker alone, of course the preceding form, No. 3, might have been used. But the contract of endorsement, it has been held, is not a contract for the payment of money only, within the meaning of section 162 (see Pleadings, 229, and cases there cited ; Alder v. Bloomingdale, 1 Duer, 601; Pierce v. McClave, 5 Duer, 670 ), and the facts which show the legal liability of the endorser must be stated.