This action is Upon a, promissory note. The complaint avers- that the defendants made their promissory note in writing, for .$186, and delivered the same to Mrs. Harriet E. Sabine, on the 9th day of May, 1893, payable one year after date, With interest.
The-complaint also avers: “ That before the commencement of this "action, and before said note became due, the said Harriet E. Sabine, for", value received, Sold, transferred and delivered said note to this plaintiff, Who is now the owner and holder thereof.”
'.A payment, of'$14j60. was .made September .1,. 1894;. The plaintiff demands judgment f.or the sum of .'$186, With interest from the 1st day of September, 4894.
*33The defendants served an answer in which they admitted the mating and delivery of the note mentioned and described in the complaint to Harriet E; Sabine. They also admit that no part of the note was paid, except as set forth in the complaint.
Eor a second answer the pleading is as follows: “II. They deny any knowledge or information sufficient to form a belief as to whether before .the commencement of this action and before said note became due, or at any other time, said Harriet E. Sabine,' for value received, sold, transferred and delivered said note to the plaintiff; or as to whether the said plaintiff is now the owner and holder thereof.” Judgment is demanded for a dismissal of the complaint', with costs.
This motion was made under section 522 of the Code of Civil Procedure for judgment, based upon the theory that the answer contains no denial of any material allegation in the complaint. A denial in the form of this answer is sufficient. Code Civ. Pro., §§ 500, 537 ; Bennett v. Leeds Mfg. Co., 110 N. Y. 150 ; Wilson v. Eastman Co., 56 Hun, 194 ; Henderson v. Manning, 5 Civ. Pro. 221.
Assuming, that the case is moved for trial at the term, could the plaintiff take judgment upon the pleadings as they stand ? Under this complaint is it necessary for the plaintiff to make any proof, or to ask any admissions on the part of the defendants to entitle the plaintiff to take judgment ?
The office of a complaint is to state in a plain and concise manner the cause of action upon which the plaintiff relies. Code of Civ. Pro., § 481, subd. 2.
The plaintiff in this action is not the payee of the note in question. Perhaps an averment that the plaintiff is the holder of the note would be sufficient to entitle the plaintiff to recover under the complaint, with other proper averments, and. an admission in the answer of the mating and delivery of the nothin question, without any denial of the allegation of ownership, would entitle the plaintiff to take judgment; but this is not the casé.
The complaint tenders the issue that the plaintiff took the transfer and delivery of this noté from the' payee,' before maturity, for a valuable consideration, and, therefore, is now the owner and holder of the note. If. an unnecessary issue has been tendered to defendants, it is tendered by the plaintiff’s complaint, and having been thus tendered, the defendants have the right to controvert it. Moss v. Barton, 12 N. Y. Weekly Digest, 524.
*34The case cited is similar to the case- at bar. ' Daniels,. J., writing the opinion,, says: “ The,plaintiff framed hi's; complaint in such a manner as to invite this issue, and he cannot now relieve himself from the possible consequence by assailing the answer as frivolous. * * * He- made it the subject of a special allegation,. stating affirmatively that he was, in fact, the lawful owner and holder of the noté when the suit was commenced. This, though not required to be averred by him, was still an important circumstance in the case; and as he did make it- a part of his complaint, the defendants, were at: liberty to- take issue'upon it by-a’ direct denial.” ■
In the case of Hays v. Hathorn, 74 N. Y. 486, the court held:'. “ To entitle a party to maintain án action upon a promissory note he must be the legal owner and have-the right of possession of the instrument; such ownership must be sufficient to protect the defendant, upon a recovery against him, from a subsequent action thereon.”
-' In the case at bar,, under the answer, defendants would have the right to controvert the transfer and delivery of the note to the plaintiff and contest the allegation that the plaintiff is the owner and holder of the note. ■ The defendants: would- have the right to' give evidence that the note was lost by the payee after maturity and that, she had never párted with her title to; or ownership, therein. ■ ' .
The plaintiff’s recovery would not be a bar to another action' on the note by the real party in interest. -The situation would be very materially changed had the action been brought by the' payee.
As an illustration, take another test; Under the pleadings as they now stand, who has the burden of proof? . The note is not .in the hands of the payee; if this complaint is true. The allegation that: it has been, transferred and delivered to the plaintiff, and that she jg. the laivful owner and holder thereof, prima facia, perhaps, upon the presentation of the- note in open court,., would be sufficient proof of the transfer to, and the: ownership by, the plaintiff.
Upon the production by the plaintiff of the note sued upon, the presumption of law is raised, not Only. that the plaintiff is the holder of it, but that she is the holder’ thereof before maturity and for full valúe.- If the contrary is asserted, the burden of proof is upon the one asserting it to .establish the fact by evidence. Nat. St. Bank of Camden v. Richardson, 20 N. Y. St. Repr. 52 ; *35Flour City Nat. Bank v. Grover, 38 Hun, 4; Kidder v. Horrobin, 72 N. Y. 159.
The case of Conselyea v. Swift, 103 N. Y. 604, is not in point. In that case there was no denial of any of the averments in the complaint. There was an affirmative defense set up. The allegations of the complaint were admitted.
In the case at bar, if there was necessity for making any proof or taking any admissions, the plaintiff had the burden of proof under the answer in question. Lake Ontario Nat. Bank v. Judson, 122 N. Y. 218.
If I am correct in the conclusions reached, the motion for judgment upon the pleadings must be denied, with costs.
Motion denied, with costs.
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