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

instrument, and state that there is due to him thereon, from the 9 adverse party, a specified sum, which he claims.

Such an allegation is equivalent to setting forth the instrument according to its legal effect.”

The Court of Common Please at the Trial Term, upon the verdict of a jury, entered judgment for the plaintiff.

The General Term affirmed the judgment, making no ruling however on the question of pleading.

The Court of Appeals, affirmed the judgment.


EARL, J. [after stating the substance of the pleading said]: “It is true that the complaint is not in compliance with section 534 of the Code, as it does not state that there is due to the plaintiffs on the note from the defendant a specified sum which they claim. They simply allege that they are lawful owners and holders of the note, and set it out. They do not allege that it was executed by the defendant, nor do they allege that any sum whatever is due thereon to them. But this defect in the complaint is cured by the answer, in which the execution of the note by the defendant is admitted. And there is no allegation 11 that it has been paid. Therefore, even if the complaint would have been held defective, if demurred to, the defect was cured by the answer, and the complaint may now be deemed amended. (Code, $ 721-723; Bate v. Graham, 11 N. Y., 237; Pratt v. H. R. R. R. Co., 21 id., 305; Haddow v. Lundy, 59 id., 328.)

"It was also claimed that the complaint was defective because it did not allege facts showing that the surrogate of New York County, by whom plaintiffs were appointed administrators, had jurisdiction to appoint them. But the allegation in the complaint is that the letters of administration were duly issued and granted to the plaintiffs by the surrogate appointing them administrators of all the goods, chattels and credits of the deceased, and that they duly qualified as such, and entered upon the duties of their office. These allegations must be held sufficient as against an extremely technical objection taken for the first time at the trial" [Ruling as to insufficiency of evidence, omitted here.]

All the judges concurred.
Judgment affirmed.




Conkling v. Gandall, 1 Abb. Ct. of App. Dec., 423.


New York Court of Appeals, 1864.

[Reported in 1 Abb. Ct. of App. Dec., 423.]

In an action against an indorser of negotiable paper, the complaint must state the facts necessary to charge him as such; and an averment of demand and notice is not dispensed with by giving a copy of the instrument and alleging the sum due, in the short form allowed by Section 162 of the Code of Procedure [Code Civ. Pro., § 534] for pleading instruments for the payment of money only.*

Jonas and Theodore Conkling sued James R. Gandall, as indorser, and George L. Burdick and Charles Finn, as makers of a note. The allegations of the complaint were as follows:

"That the defendants, Burdick and Finn, made their certain co-partnership promissory note in the words and figures following, that is to say: [Copy of Note made by Burdick and Finn to the order of Gandall.]

"That the said note was indorsed as follows:

"J. R. Gandall, Salem, Washington Co., N. Y.'

"That such indorsement was so made by the above named defendant, James R. Gandall.

"That the said plaintiffs are now the owners and holders of the said promissory note, and that the whole amount thereof, with interest, is due from the said defendants thereupon. Wherefore, etc."

Gandall, who alone appeared, demurred on the ground, among others, that the complaint did not state facts sufficient to constitute a cause of action, in that it did not aver presentment of said note for payment, demand or refusal, or protest, or notice to de3 fendant Gandall.

The Special Term overruled the demurrer.

The General Term affirmed the judgment.

The Court of Appeals reversed the judgment.

WRIGHT, J. This judgment, I think, cannot be sustained.

* This overrules in effect, Roberts 7. Morrison, 11 N. Y. Leg. Obs. 60, and sustains Alder v. Bloomingdale, 1 Duer. 601; s. c. 10 N. Y. Leg. Obs., 363; Cottrell v. Conklin, 4 Duer., 45; Marshall v. Rockwood, 12 How. Pr., 452; Lord v. Cheesbrough, 4 Sandf. 696.

Conkling v. Gandall, 1 Abb. Ct. of App. Dec., 423.


complaint, under the Code, must contain "a plain and concise 4 statement of the facts constituting a cause of action" (Code of Pro., § 142), and it may be demurred to if it does not (§ 144). No cause of action was stated against the defendant Gandall. The only allegation affecting him is, that he indorsed a promissory note for two hundred and fifty-six dollars and fifty-eight cents, made by the firm of Burdick & Finn, payable to his order at the bank of Fort Edward, four months after date, which the plaintiffs own and hold. This is not stating a cause of action against an indorser. The mere fact of indorsement of a negotiable promissory note gives no right of action, nor entitles the holder to recover against the indorser. Without resorting to the contract of the indorser, which the law implies, the indorsement of such a note is nothing but an order upon the maker to pay its contents to the lawful holder. Such a note, although indorsed, contains no promise to pay on the part of the person indorsing it. His contract is conditional, not absolute, and depends on facts outside of the written instrument. He promises to pay only on condition that the holder shall present the note for payment, and, if payment is refused, notice shall be given to him at 6 the time and in the manner required by law. This demand of payment and notice of dishonor, or facts by which they are excused, must be proved on the trial, to establish his liability, and facts thus necessary to be proved, as they constitute in part the cause of action, must be averred in the complaint.

The complaint, therefore, as against the appellant Gandall, was insufficient and bad on demurrer, unless the requirements of section 142 are dispensed with by another section of the Code of Procedure.

It is provided in section 162, chapter 5, of the Code, entitled "General rules of pleading" [re-enacted in substance in Code Civ. Pro., §534], that "in an action or defense, founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and to state that there is due to him thereon from the adverse party, a specified sum which he claims." The precise intention of the legislature, or the framers of the Code, in this provision, is not clear, but certainly it was not meant that a complaint should be good, that



Conkling v. Gandall, 1 Abb. Ct. of App. Dec., 423.

8 merely set forth a copy of the instrument, with a statement that there was due to the plaintiff thereon, from the person named as a defendant, a specific sum, without averring that the defendant executed or delivered the instrument, or that it belonged to the plaintiff, or in any way averring the defendant's liability or the plaintiff's title. Such a mode of pleading would be so loose, vague and indefinite, that it is not to be assumed that the legislature intended to sanction it. This, however, would follow if the clause is not to be read in connection with section 142, but construed alone and strictly. How are issues to be framed under such a complaint, or one dispensing with the requirements of section 142? Take the present case. The instrument is a promissory note; three parties are impleaded as defendants; a copy of the instrument is given, accompanied by a statement that there is due thereon, from the persons named as defendants, a specified sum which the plaintiff claims, and there is nothing more. The defendants may interpose by answer a denial, but what issue or issues will be thereby framed? There is but a single fact alleged, and that in the most general form, upon 10 which an issue can be taken; viz., that there is due from the defendants to the plaintiffs, upon the instrument, the sum named. Would denying this put in issue the making of the note by Burdick & Finn as copartners, and the plaintiff's title to it? Manifestly not. Nor did the pleader in this case so understand it. It is averred that Burdick & Finn made the notes as copartners, a copy of which is set out; that the defendant Gandall indorsed it, and that the plaintiffs are the owners and holders; all of which was unnecessary if the provisions of section 142 are dispensed with by section 162, where the "action is founded upon an instrument for the payment of money only." Although the intended purpose of the last clause of section 162 is not clear, I am inclined to the opinion that it was meant that where the action or defence was founded upon an instrument for the payment of money only, instead of setting forth the instrument according to its legal effect in the body of the complaint or answer, it should be sufficient for the party to give a copy of it. Be this, however, as it may, it is too improbable to suppose that it was intended, in any class of actions, that a complaint should


Conkling v. Gandall, 1 Abb. Ct. of App. Dec., 423.

be good, that did not, upon its face-either by direct averment, 12 or by giving a copy of the instrument upon which the action was founded, with allegations connecting the parties with it— show a cause of action; or which did not contain material allegations to that end, on which issue might be taken, or on which, if issue was not taken, judgment would legally pass against the impleaded parties by default. In this case the instrument (a copy of which is given) purports to be for the payment of money; but without the averment that it was made by Burdick & Finn, named as defendants, as copartners, and unless plaintiffs' title to it appears in some way (neither of which facts is to be implied from the instrument itself) there would be no statement of a cause of action by the plaintiff against them. There is certainly no cause of action shown, where the facts upon which a plaintiff grounds his right to recover against a party, whom he may choose to implead as a defendant, do not affirmatively, or by implication, appear upon the face of the pleadings.


Beyond question, the complaint we are considering was sufficient against the defendants, Burdick & Finn. Their liability and the plaintiffs' title appear affirmatively or by implication in 14 the pleading. It is alleged that as copartners they made a certain promissory note, of which a copy is given, instead of stating the legal effect of the instrument; and that the plaintiffs are the owners and holders thereof, and that the whole amount is due. Nothing more was required. The instrument itself declares the liability of its makers. It contains an absolute promise of the makers to pay a sum of money to its lawful holder at the time specified. There are no conditions to the promise. The instrument is evidence of the amount of the debt, and the effluxion of 15 time by its terms fixes their liability. If the plaintiffs have title to the note at its maturity, they are the parties to whom the obligation of absolute payment is due. By proof on the trial of the making of the note by the firm, and the plaintiff's title to it, their right to recover as against the makers is established. But it is not so as against the defendant Gandall. Alleging and proving simply that he indorsed a note payable to his order would create no liability on his part to the holder. The law implies no contract to pay absolutely from the mere indorsement of

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