Dart v. Van Horn

63 Misc. 119, 115 N.Y.S. 1056

Opinion

Giegerich, J.

The action .is by the payee of a promissory note against the maker, who demurs to the complaint for insufficiency. The demurrant contends that the allegation that the plaintiff is the owner of the note is a mere conclusion, but a similar averment has been held to be sufficient. Gurnee v. Beach, 40 Hun, 108; Maccarone v. Hayes, 85 App. Div. 41. It is further urged that the complaint is insuf ficient because it fails to allege that the plaintiff is also the holder of the note, but it is not necessary to allege in a complaint by a payee of a promissory note against the maker that the plaintiff has not parted with the note or that he is the holder. Niblo v. Harrison, 7 Abb. Pr. 447; Taylor v. Corbiere, 8 How. Pr. 385. In the case last cited Mr. Justice Harris, at page 388, pertinently observes: “ It certainly could not be required of him that he should aver, negatively, that since the note was transferred to him he had not transferred it to another person. It is enough that he has averred everything which it would he necessary to prove on the trial, if controverted, to entitle him to recover.” The demurrer is, therefore, overruled, with costs, with leave to withdraw the same and to answer upon payment of such costs within twenty days after the service of the interlocutory judgment to he entered hereon, with notice of entry thereof.

Demurrer overruled;