“The complaint contains two causes of action. After alleging the existence of an association called Antioch College, and its incorporation by the state of Ohio, it avers, that on the 29th June, 1857, the said college, being heavily in debt, made an assignment of its estate, &c. to the plaintiff, and by which he was empowered to sue for and collect all the outstanding debts of said college, and apply the proceeds to the payment of the creditors of the corporation. It then avers that on the 5th of April, 1851, the defendant made his promissory note for the sum of $100, payable September 1st, 1852, and delivered the same to the said Antioch College; that the note had never been paid; that it was now in possession of the plaintiff as the property of said Antioch College, which is the lawful owner and holder thereof; that there is due on said note $138.58. For a second cause of action, the complaint avers that the stock of said association was issued in shares of $100 each; that on the 5th of April, 1851, the defendant became a subscriber to the stock of the college in the sum of $100, payable on the first day of September, 1852; that the same has never been paid, and that there now remains due and owing to said college the amount of said subscription and interest, amounting to $135.58, whereupon the plaintiff demands judgment for $271. To this the defendant demurs, on the ground that the complaint does not state facts sufficient in law to constitute a cause of action.
As to the first cause of action, it is clearly defective. It not only does not aver that the plaintiff is the party in interest^ *472but 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. The presumption 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 averments that he is not such lawful owner and holder.
[New York General Term, November 4, 1858.Davies, Clerke and Sutherland, Justices.]
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 shown on his part to demand of the defendant the money therein stated. The averment is, that the amount of the subscription is now due and owing to said college, thus negativing any indebtedness to the plaintiff. Judgment must be given for the defendant on the demurrer, with costs. Liberty to plaintiff to amend in twenty days.”
Wm. W. Badger, for the appellant.
Gardner & Lamont, for the respondents.
Davies, P. J.delivered the opinion of the court, to the effect, that the complaint was defective in the particulars specified; stating that he could add nothing to the reasons given by him at the special term.
Judgment affirmed, with costs.