Keteltas v. Myers, 19 N. Y., 231.

8 remains unpaid;" and the third ground is, "that it is not stated that any sum is due or owing upon it."

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The making and delivery of the note to the plaintiff is averred, and after setting out a copy of it, by which it appears it was dated on the 1st day of July, 1853, and was payable to the order of the plaintiff at sixty days, and was for the sum of $204.67, the complaint further avers "that there is due and owing said plaintiff, the said sum of $204.67, with interest thereon from 2d of day September, 1853." The amount averred to be due is the exact sum mentioned in the note, and the claim of interest is from the 2d day of September, 1853, the day the note became due, at which time, and not before, interest was chargeable. The words "said sum" referred most clearly to the note and the money mentioned in it, and are equivalent to averring that there was due upon it, or thereon, the sum mentioned in it, with interest. The defendant promised to pay the plaintiff a certain sum. The note is evidence of that sum, and a true copy is set out. If the note, or any part, had been paid, that was matter of defence to be set up in the answer. It was outstanding, as the complaint shows, 10 and that imputes a subsisting liability. (Story on Prom. Notes,

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106; Lake v. Tyson, 6 N. Y., 2 Seld. 461.) The case of Allen v. Patterson, 7 N. Y. (3 Seld., 476), settles the present in favor of the defendant and that very sum is alleged to be due to the plaintiff.

The court below, in coming to the conclusion that there was no sufficient breach stated in the complaint, remarked that there is no allegation that the note has become payable, or that it is due. But the learned judge, who wrote so elaborately on that point, seemed to have overlooked the fact that a copy of the note was set out in the complaint under Section 162 of the Code, in which it appeared that it was dated 1st of July, 1853, and was payable sixty days after date, to the order of the plaintiff, showing upon its face that it had become payable, and was due before the commencement of the action. All that was necessary to state additionally was, that there was due to the plaintiff thereon, from the defendant, the amount of the note. This is done, in the present case, in equivalent words, about which there can be no mistake or misleading of the party; and the allegations

Palmer v. Smedley, 6 Abb. Pr. R., 205.

should have been liberally construed, with a view to substantial 12 justice between the parties. (Code, § 159; 7 N. Y., 480.)

Tke court below admitted that the objections to the complaint were strictly technical, and that under the present system of pleading, such technicality should not be encouraged further than is necessary for the due and orderly administration of justice. In our opinion, they should have decided in conformity to those views. They should have gone further-they should have declared the demurrer frivolous, as we now do.

The judgment must be reversed, and judgment rendered for the plaintiff with costs.

All the judges concurred.

Ordered accordingly.

PALMER v. SMEDLEY.

New York Supreme Court, Special Term, 1858. [Reported in 6 Abb. Pr. R., 205; aff'd without opin., 28 Barb., 468.]

1. Complaint held bad on demurrer which-after setting out the note in suit and alleging its assignment to plaintiff-alleged that the note was the property of the assignor, who was the lawful owner and holder thereof.

2. The presumption of law which would arise from the allegation of plaintiff's possession of the note is rebutted by the averment that the assignor is the lawful owner and holder.

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The complaint alleged an assignment by an association known 1 as Antioch College of its estate, etc., to plaintiff in trust to collect its debts. It then averred that on April 5, 1851, the defendant made his promissory note for the sum of $100, payable September 1, 1852, and delivered the same to the said Antioch College; that the note had never been paid; that it was then in the possession of the plaintiff as the property of the said Antioch College, which was the lawful owner and holder thereof; and that there was due on said note $135.53.

A second cause of action alleged defendant's subscription to the stock of the college in a specified sum, which had never been paid, and that there remained due and owing to said college the amount of said subscription.

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Cohu v. Husson, 113 N. Y., 662; aff'g 14 Daly, 200.

Plaintiff demanded judgment for both sums. Defendant demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action.

DAVIES, J. As to the first cause of action, it is clearly defective. It not only does not aver that the plaintiff is the real party in interest, but avers that the note sued on is not the property of the plaintiff and that he is not the lawful owner and holder of the same, but that it is the property of another, and which other is the lawful owner and holder thereof. This is in direct conflict with section 111 of the Code. [Code Civ. Pro., § 449.]

The presumptions of law which would arise from the fact that the plaintiff, being in possession of the note, is the lawful owner and holder thereof, is rebutted by the averment that he is not such lawful owner and holder.

In reference to the second cause of action, there is no averment of any indebtedness to the plaintiff by reason of the matters therein stated, or of any right therein on his part to demand of the defendant the money therein mentioned. The averment is, that the amount of the subscription is now due and owing to the said college, thus negativing any indebtedness to the plaintiff.

COHU v. HUSSON.

New York Court of Appeals, 1889.

[Reported in 113 N. Y., 662; aff'g 14 Daly, 200.]

1. The omission in a complaint on a promissory note setting forth the note and alleging that plaintiffs were the owners thereof, in the short form given by Code Civ. Pro., § 534, to allege also, as required by that section, that it was executed by defendant, or that a specified sum was due plaintiff thereon, is cured by an answer expressly admitting defendant's execution of the note, not alleging payment, but setting up as a defense, want of consideration.

2. After judgment in favor of plaintiff, the complaint might be deemed amended.

3. A complaint in an action by administrators alleged that letters of administration were duly issued and granted to plaintiffs by the surrogate of a specified county, and that they duly qualified, etc.Held, sufficient as against an objection taken at the trial, although it did not set forth the facts showing that the surrogate had jurisdiction.

Action on a promissory note.

Cohu v. Husson, 113 N. Y., 662; aff'g 14 Daly, 200.

The allegations of the complaint, were as follows:

I. That the plaintiffs are lawful owners and holders of a certain promissory note of which the following is a copy:

NEW YORK, Decr. 11th, 1878.

$750.00. "Five months after date I promise to pay to the order of Mr. "Henry S. Cohu, seven hundred and fifty dollars at the Brooklyn Bank, in the City of Brooklyn, value received. "NEW YORK, 11/14, '79.

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JOSEPH HUSSON."

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II. That thereafter and before the commencement of this action said Henry S. Cohu died intestate, and that on the 11th 2 day of May, 1883, letters of administration upon the estate of said Henry S. Cohu, deceased, were duly issued and granted to these plaintiffs by the surrogate of the city and county of New York, appointing the plaintiffs administrators to all the goods and chattels and credits which were of said deceased, and that the plaintiffs thereupon duly qualified as such administrators, and entered upon the discharge of the duties of their said office. III. That no part of said note has ever been paid. WHEREFORE, etc.

The answer, omitting formal parts, was as follows:

I. That the note in suit had no legal inception, because, that for their mutual accommodation, the plaintiffs' intestate, on or about the 4th day of December, 1878, exchanged promissory notes with the defendant for the sum of seven hundred and fifty dollars, under the agreement that the said plaintiffs' intestate should pay the promissory note he gave this defendant, and this defendant should pay the promissory note which he gave the said plaintiffs' intestate, which is the note in suit, and neither was to have any validity as against the other, unless so respectively paid; that this defendant used the said plaintiffs' intestate's note, which is of the same amount, date and time of payment as the note in suit, and transferred the same to George B. Ripley & Co. with this defendant's endorsement thereon. That, at the maturity of the last mentioned note, the said plaintiffs' intestate did not pay the same, but the same was protested for non-payment, and this defendant was duly notified, as indorser thereon, by the said George B. Ripley & Co., who,

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Cohu v. Husson, 113 N. Y., 662; aff'g 14 Daly, 200.

to the commencement of this suit were, and had been, and are holders thereof, and claim to enforce the same against this defendant, whereby the consideration of the promissory note, now in suit in this action, before the death of the said intestate, and ever since, has wholly failed, and the said plaintiffs' intestate was not, up to the time of his death, nor the said plaintiffs, as his legal representatives, been bona-fide holders thereof for value, or compelled to pay the same.*

II. For a second and further defense, and by way of counterclaim, this defendant says, that, on the 11th day of August, 1879, the said intestate made his certain promissory note, of which the following is a copy:

NEW YORK, August 11th, 1879. Two months after date I promise to pay to the order of Joseph Husson, seven hundred and fifty dollars, at-value received. HENRY S. СонU.

That he delivered the same for value to this defendant, who ever since has been the lawful owner and holder thereof; that, at maturity, and before his death, the said intestate did not pay the same, and the amount thereof is now due this defendant, with interest thereon, from the time of its maturity, and he claims to offset the same against any demand the said plaintiff may sustain against this defendant, on the cause of action herein, and to have judgment against the said plaintiffs, as administrators, etc., of the said intestate, for the said amount with the lawful interest thereon.

Wherefore, this defendant prays that the said complaint may be dismissed with costs, and that he may have judgment on this 8 counterclaim, herein, with costs.

Defendant raised the objection that the complaint neither pleaded the note according to common-law rules nor complied with the conditions of the short method of pleading on instruments for the payment of money only given by Code Civ. Pro. 534, which is as follows: "Where a cause of action, defense, or counterclaim, is founded upon an instrument, for the payment of money only, the party may set forth a copy of the

* That this portion of the answer presents no legal defense, see Rice v. Grange, 131 N., Y. 149.