Summary
In Barkley v. Muller (164 App. Div. 351) the complaint set forth that the defendant Muller made his promissory note in writing, whereby he promised to pay to the order of George B. Birch the sum of $2,500 four months after date and alleged that the defendants George B. Burch and Sarah M. Burch thereafter and before maturity of said note, for value indorsed a one-half interest therein to plaintiff and delivered the same to him and that he was then the owner and holder thereof.
Summary of this case from Goodwin v. Investors Traders Realty Co.Opinion
November 6, 1914.
Arnold E. Davis [ Roy M. Robinson with him on the brief], for the appellants.
Huger W. Jervey, for the respondent.
The complaint herein, after setting forth that the defendant Muller made his promissory note in writing on a certain date, whereby he promised to pay to the order of George B. Burch, at the Hudson Trust Company in the city of New York, the sum of $2,500 four months after said date, further proceeds to allege: "That the defendants George B. Burch and Sarah M. Burch, thereafter and before maturity of said note, for value, indorsed the one-half interest therein to and delivered the same to this plaintiff, who is now the owner and holder thereof."
By section 62 of the Negotiable Instruments Law (Consol. Laws, chap. 38; Laws of 1909, chap. 43) it is required that an indorsement must be of the entire instrument and that an indorsement which purports to transfer to the indorsee a part only of the amount payable is declared not to operate as a negotiation of the instrument. By section 60 of the same law, "negotiation" is defined as the transfer of an instrument from one person to another in such manner as to constitute the transferee the holder thereof; where an instrument is payable to order it is negotiated by the indorsement of the holder completed by delivery. By section 2 of the same law the holder is defined as the payee or indorsee of a bill or note who is in possession of it, or the bearer thereof. In King v. King ( 37 Misc. Rep. 63; affd., 73 App. Div. 547; appeal dismissed, 172 N.Y. 604) it was held that in an action at law upon a promissory note the obligation of the defendant is single and cannot be divided into parts, and that only one action can be maintained for the debt in its entirety. The present action being one at law, and containing no averments or prayer for relief appropriate in an action in equity, it follows that the complaint set forth no cause of action, and that the order appealed from should, therefore, be reversed, with ten dollars costs and disbursements, and the demurrers of the defendants sustained, with ten dollars costs, with leave to the plaintiff to server an amended complaint within twenty days upon payment of said costs.
INGRAHAM, P.J., LAUGHLIN, SCOTT and HOTCHKISS, JJ., concurred.
Order reversed, with ten dollars costs and disbursements, and motion denied and demurrers sustained, with ten dollars costs, with leave to plaintiff to amend on payment of costs.