8 Daly 172 | New York Court of Common Pleas | 1878
Although the plaintiff does not expressly aver that she brings the action in her capacity as administratrix, and although the addition of the words “ administratrix of the goods and chattels of Rosine Cordier” in the title of the complaint is a mere descriptio persones, I think a fair construction of the pleading shows that the plaintiff sued in her representative character. There is no doubt that a good pleader will never omit to place the word as between the surname of his client and the word administrator whenever he brings suit for the legal representative of an intestate. It has been said the word as was, in such a case, indispensable (Henshall v. Roberts, 5 East, 154), but it would be a departure from the system of pleading -established in New York if we should revive the strictness of the common law forms. Pleadings are to be liberally construed with a view to substantial justice (Code Civil Proc. § 519), and courts will not search for flaws if the substance of a good cause of action, or of a good defence, is stated by the pleader with sufficient clearness to apprise adverse parties of the issues to be tried. It is conceded that the complaint is not defec
The objection that the complaint does not allege that the paper sued upon is the plaintiff’s, and in her possession, is not tenable. The paper was non-negotiable, and delivered to the plaintiffs intestate. If it had been parted with by the intestate or by the plaintiff it was for the defendant to show the fact. (Peets v. Bratt, 6 Barb. 664.)
The most serious question in the case is, whether the guaranty of the defendant is an absolute or merely a contingent undertaking. I think-it must be construed to be a guaranty of payment, and, therefore, an absolute understanding. The principal instrument is a non-negotiable promissory
The consideration for the note is expressed upon its face, being the loan of' fifteen hundred dollars in cash, and the transfer of a note for five hundred dollars, payable November 12, 1875. It is agreed that that note shall be accepted by Mrs. Ferrero, the borrower, as so much cash. It is not to be accounted for, nor does the obligation to pay Rosine depend upon Mrs. Ferrero’s success in -collecting it. She agrees to pay two thousand dollars at the end of two years, absolutely and at all events. Upon that note, at the time the money is lent, the defendant writes : “ I guarantee the above obligation, Henry Thompson.” What obligation is it that he guarantees ? That of paying Rosine the money borrowed at the expiration of two years. There is no condition expressed, and none implied. His guaranty is not of Mrs.' Ferrero’s responsibility, but that she shall pay at maturity. Upon a guaranty like that, he was not entitled to demand and notice, but became liable to pay the very instant that Mrs. Ferrero was in default. (Brown v. Curtiss, 2 N. Y. 227, 228 ; Barhydt v. Ellis, 45 N. Y. 110 ; Allen v. Rightmere, 20 John. 366.)
None of the other points taken by the appellant seem to me to require comment.
The judgment should be affirmed, with costs.
Chables P. Dalt, Ch. J., concurred.
Judgment affirmed, with costs.