(2.) ON MONEY INSTRUMENTS NOT UNDER SECTION 162 OF THE CODE. (No. 4.) Complaint against maker and endorser of note. SUPREME COURT-ONTARIO COUNTY. A. B. C. D., E. F. and G. H. 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.1 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 v. 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 "made 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. G. K., Plaintiff's Attorney. 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. 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 v. Paine, 5 How. Pr. R., 107.) 2 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 v. 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. (No. 5.) On a bank check drawn by firm, and endorsed to plaintiff. SUPREME COURT-RENSSELAER COUNTY. E. L. M. J. M. T., G. T., M. V. and C. F. M. The plaintiff complains that the defendants, who are copartners in trade, J. M. T., G. T. and M. V., by their firm name of J. M. T. & Co., on the 12th day of November, 1857, at Troy, New-York, made a certain check or draft in writing, whereby they directed the Union Bank of Troy, thirty days after date, to pay to the defendant, C. F. M., the sum of $200, and the said payee thereof endorsed the said check for a valuable consideration to the plaintiff'; that when the said check became due and payable, it was duly presented for payment to the said Union Bank of Troy, and payment thereof was duly demanded, but the drawers had not funds at said bank to meet said check, and the same was not paid, and that due notice thereof was given to the defendant C. F. M. And the plaintiff further says, that he is now the lawful owner and holder of the said check, and that the defendants are, and each of them is, indebted to him thereupon in the sum of $200, principal, together with interest from 15th December, 1857.1 Wherefore the plaintiff demands judgment against the said makers and endorser of the said check, respectively, for the said principal sum and interest, and seventy-five cents fees for protest, besides costs. JOHN L. FLAGG, Plaintiff's Attorney. 1 These allegations are not necessary, and may be omitted. (No. 6.) By a copartnership firm against another firm on a draft accepted and paid by plaintiffs. SUPERIOR COURT-CITY AND COUNTY OF NEW-YORK. Henry Suydam, Jr., Almet Reed and Daniel R. Suydam William B. Barber, George W. Girty and The complaint of the plaintiffs shows, that heretofore, to wit, on the 25th day of November, 1845, the defendants, then composing the firm of Barber, Girty & Doran, drew their certain bill of exchange, in said copartnership name, at Cincinnati, in the State of Ohio, and dated on the day and year last aforesaid, and directed the same to the plaintiffs at the city of New-York, who then were, and now are copartners, under the firm name of Suydam, Reed & Co., by which bill of exchange the said defendants requested the plaintiffs to pay to the order of said defendants, four months after date, the sum of $5,000, for value received, which bill of exchange the said plaintiffs afterwards accepted and paid in full; and that no funds were provided by said defendants, either before or after the same was drawn, as aforesaid, for the payment thereof, and the said plaintiffs have had no funds of said defendants any time in their hands to pay the same. at Wherefore the plaintiffs demand judgment against the defendants for $5,000, and interest thereon from the 28th day of March, 1846, besides costs. MONELL, WILLARD & ANDERSON, Plaintiffs' Attorneys. (3.) COMPLAINTS, BY REAL PARTY IN INTEREST, UNDER SECTION 111 OF THE CODE. (No. 7.) By the assignee of a claim for the non-delivery of goods sold. SUPREME COURT-ALBANY COUNTY. John S. Perry The plaintiff complains of the defendant, and, on information and belief, avers, that on the 25th day of August, 1854, at the city of Troy, Rensselaer county, one Lewis Elmore contracted with the defendant to purchase of said defendant the following amounts of lumber, at the following prices respectively, viz: 4,160 feet of clear pine, at $34 per 1,000 feet; 4,779 feet of fourths pine, at $24 per 1,000 feet; 7,319 feet of box pine, at $20 per 1,000 feet, and 600 pine boards, at 17 cents each, all to be delivered by said defendant, free of charge, at the cars in Troy aforesaid, that is to say, at the place for receiving freight on the Troy and Greenbush railroad; that, by the terms of said contract, said Elmore was to be charged with the sum of $2.03, being half the costs for inspection of some of said lumber, and he was to be allowed, as a deduction on the whole price of said lumber, the sum of $5, for cash which he was to pay, and that, by the said terms, the said Elmore was to pay the balance of said purchase price, viz., $501.54, by paying $250 in cash, and giving his note for $251.54, due November 28th, 1854; that upon the |