Plaintiff sues defendant on her promissory note, made.to.the order of plaintiff or another. The action upon a note in that form may be maintained by either of the payees without joining the other. See Stelling v. Grabowsky, 46 N. Y. St. Repr. 700. Moreover, in Walrad v. Petrie, 4 Wend. 575, it has been been held that a note in this form is not a negotiable instrument because not payable absolutely; and that is based on the holding that the meaning of such a note is that it is payable to either payee on condition that it has not been paid to the other.
Defendant also claims that plaintiff fails to plead *251that “he is in possession and the lawful holder ” of the note; but the complaint alleges that the other payee has no claim or interest adverse to the plaintiff, which, in a liberal construction of the pleading is, I think, sufficient. Furthermore, as the note in this form is not a negotiable instrument (supra) no such allegation is necessary.
The judgment should be reversed, with costs, with leave to defendant to interpose an answer within six days.
Interlocutory judgment affirmed, with costs.