| N.Y. App. Div. | Jul 1, 1899
Lead Opinion
The action is to recover upon three promissory notes. There are three causes of action which are the same, except as to the description of the notes. It is alleged in the first cause of action that the defendant Julia M. Clyde, on or about the 9th day of July, 1896, made her promissory note in writing, dated on that day, whereby, for value received, she promised and agreed to pay to the order of herself the sum of $4,925, at the Murray Hill Bank in the city of Hew York, thirty days after the date thereof; that the defendant Robert J. Clyde thereafter and before maturity duly indorsed the
The statute in force at the time of the making and delivery of this note provided that a note made payable to the order of the maker thereof, or to the order of a fictitious person, shall", if negotiated by the maker, have the same'effect and be of the same validity as against the maker, and all persons having knowledge of the facts, as if payable to bearer. (1 R. S. 761, § 5.) Undoubtedly,, to make a note payable to- the order of the maker and not indorsed valid within this provision of the statute, it is necessary to allege that the note was negotiated by the maker;.for, until such negotiation, or, in other words, until the nóte is delivered by the maker and value paid for it, it is an incomplete instrument, and imposes no liability upon the maker. The defendants insist that the complaint does not allege that this note wa.s negotiated by the maker. Negotiation, as relating to negotiable.paper, is defined in Bouvier’s Law Dictionary to be “ The act by which a bill of exchange or promissory note is put into circulation by being passed by one of the original parties to another person. * * * There are two modes of negotiation, viz.: By delivery and by indorsements.” Thus, an allegation that the note was delivered for value is equivalent to an allegation of its negotiation.
In Central Bank of Brooklyn v. Lang (1 Bosw. 202" court="None" date_filed="1857-05-09" href="https://app.midpage.ai/document/central-bank-of-brooklyn-v-lang-8313998?utm_source=webapp" opinion_id="8313998">1 Bosw. 202, 206) it is said : “We consider that a note.is negotiated within the statute, when it is delivered out by the maker for a consideration received, or agreed to be received, or delivered for circulation.” In Merchants’ Bank v. Straiton (3 Keyes, 366) it was said: “ It is not only stated in the complaint in this action that the plaintiff is the holder and owner of the check, but also that it was .transferred and delivered to him for a valuable consideration, and "that he became its owner and holder by virtue of that transfer and delivery. This cannot be true unless the drawer of the check transferred and delivered -it directly to the plaintiff or to some other person by or through whom it was transferred to.the plaintiff; ” and this allegation is sufficient on.
We think, therefore, that the complaint in substance averred that the notes in suit were negotiated by the maker, and that within the statute the note was payable to bearer.
It follows that the judgment appealed from was right, and it is affirmed, with costs, with leave to the defendants to withdraw their demurrers and answer over upon payment of costs in this court and the court below.
Van Brunt, P. J., B»arrett, Rumset and O’Brien, JJ., concurred.
Concurrence Opinion
I desire to add to what Mr. Justice Ingraham has said that I do not think that the mere allegation of the making of the note here imports delivery. That is undoubtedly the rule where the payee is a real person other than the maker. That rule, however, does not apply where the note is made payable to the order of the maker or to a fictitious person, or to bearer, or to bills payable or the like. The making of such a note imports delivery to no one- in particular. Where, however, in one of the latter class of cases, the plaintiff avers, in addition to the making, that the note was delivered to him for
That allegation, with such import, is equivalent to the allegation required by the statute. If delivered to the bank by the maker for value, it was thereby negotiated by the maker.
Judgment affirmed, with costs, with leave to defendants to withdraw demurrers and answer over upon payment of costs in this court ■and in the court below.