53 N.Y.S. 61 | N.Y. Sup. Ct. | 1898
The complaint sets forth the canse of action as follows, viz.: “ Third. Upon information and belief that heretofore the defendant Julia M. Clyde, on or about the 9th day of July, 1896, made her promissory note in writing, dated that day, whereby, for value received, she, promised and agreed to pay to the order of herself the sum of $4,925, at the Hurray Hill Bank, in the city of Hew York, thirty days after the date thereof. Fourth. That the defendant Robert J. Clyde thereafter and before maturity, duly indorsed the said note, and, as thus indorsed, it was delivered to the said Hurray Ui'll Bank, for value, and has come into the hands of these plaintiffs as a part of the assets of the said bank.” The complaint also alleges a demand at maturity, a refusal, protest for nonpayment and due notice thereof. The defendants demur to the complaint on -the ground that it does not set forth facts sufficient to constitute a cause of action, for the reason that it does not state that the note was indorsed by the maker, Julia H. Clyde, or that it was negotiated by her by delivering it for value or with intent that the sanie should be negotiated, By the common law a promissory note, made payable to the order of the maker, is inchoate and invalid, until it has been indorsed by the maker, when it becomes a valid promissory note, of which the indorsee is the payee; or, if no indorsee is named, it is deemed payable to bearer. See 4 Am. & Eng. Ency. of Law (2d ed.), page 120, and cases there cited. This doctrine, however, was modified by a statute (2 R. S. [9th ed.], p. 1851, § 5), which provided that “such notes, 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.” Under this statute, notes payable to the order of the maker are valid without indorsement if negotiated by the maker, and are to be deemed payable to bearer; and a note may be said to be “ negotiated,” within ihe meaning of the statute, when it is delivered by the maker for ¿ consideration or for circulation. Central Nat. Bank v. Lang, 1 Bosw. 202; Plets v. Johnson, 3 Hill, 112; Irving Bank v. Alley, 79
Ordered accordingly.