Niblo v. Harrison

7 Abb. Pr. 447

• Court: The Superior Court of New York City
• Decided: November 15, 1858
• Status: Published

Opinion

Slossom, J.

—The demurrer is general, that the complaint does not state facts sufficient to constitute a cause of action.

The facts stated are: that the defendant made the note sued upon, whereby he promised to pay a certain sum to the plaintiff or his order, on demand; and that he delivered the note to the plaintiff; and that the defendant, though often requested, has not paid the note, .and that the whole amount thereof is due and unpaid ; wherefore the plaintiff demands judgment.

It is objected that the complaint does not show that the plaintiff is the party in interest, and that the money payable by the terms of the note is due to him.

I think there is nothing in the objection.

The mating and delivery of the note to the plaintiff give him & prima facie title.

If the complaint had contained an averment that the plaintiff was the lawful holder and owner of the note, or that the amount of the note was due to the plaintiff, it would not have made it any the better,—no issue could have been taken on such averments, as they are mere conclusions of law.

If the plaintiff, since receiving the note, has transferred it to some one else, the defendant may set it up by answer.

The authorities are quite uniform on this question. (II How.' Pr. R., 477; 1 Duer, 265; 2 Sandf., 673; 12 How. Pr. R., 461; 8 11., 388 ; 6 Scmdf, 646.)

Judgment must be given for the plaintiff on the demurrer, but with liberty to the defendant to answer within 10 days, on payment of costs of demurrer.