Davis v. Carpenter

12 How. Pr. 287

• Court: New York Supreme Court
• Decided: February 15, 1856
• Status: Published

Opinion

Balcom, Justice.

This action is brought to recover the amount of three promissory notes. The plaintiff, in his complaint, alleges he is the owner and holder of the notes, which are payable to Alvah Davis or bearer.

The defendant, in his answer, denies the allegations in the complaint,'and sets up the deferice of usury to two of the notes. He now offers to prove that the plaintiff has no personal interest in the notes, but holds them as the committee of the person and estate of Alvah Davis, the payee named therein, who is an habitual drunkard. He desires to .make this proof to authorize- him to give evidence of the declarations of such payee, made prior to being declared such habitual drunkard, to the effect that two of the notes are usurious and void.

The plaintiff’s counsel objects to the evidence that the plaintiff holds the notes as such committee, on the ground that no such defence is set up in the answer. The answer to this objection is, that such fact would constitute no- defence to the action, and therefore it is not pleadable.

The committee has properly brought the action in his own name. (Laws of 1845, p. 91, § 2 ; § 113 of the Code; 8 Barb. 552; 14 id. 488.)

The objection is overruled, and the evidence is allowed, to enable the defendant to prove the admissions of Alvah Davis, who is the real party in interest on the part of the plaintiff.

After the evidence was given, a verdict was rendered for the defendant on two of the notes, and for the plaintiff on the other.