Opinion
May, 1909.
Appeal from order striking out a demurrer to the complaint as frivolous and awarding judgment to the plaintiff. The complaint contains three similar counts. In the first cause of action it is alleged that on June 5, 1908, the defendant made its promissory note, payable on September 30, 1908, to the order of the Greensboro Table Company; that no part of said note has been paid; that on July 25, 1908, plaintiff was appointed receiver of said Greensboro Table Company and duly authorized to bring and maintain actions as such receiver. The second and third causes of action differ from the first only in the fact that the notes sued upon bear different dates and are payable at different times. It is observable that the complaint does not allege delivery of the notes to the Greensboro Table Company, nor that such notes were the property of or in the possession of said company when plaintiff was appointed receiver. So far as concerns the failure to allege delivery to the payee it may be that it is to be presumed, although the pleader has not set out copies of the notes in his complaint. ( Prindle v. Caruthers, 15 N.Y. 425; Keteltas v. Myers, 19 id. 231.) There does not seem, however, to be any such presumption as to the passing of the notes to plaintiff upon his appointment as receiver, for unless they remained the property of the company until that appointment, which is not alleged, the plaintiff acquired no title to them or right to sue upon them. We do not think that the demurrer can be deemed frivolous, even though upon more elaborate argument the complaint might be found to be sufficient. The order must be reversed, with ten dollars costs and disbursements, and the motion denied, with ten dollars costs. Ingraham, Laughlin, Clarke and Houghton, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion denied, with ten dollars costs.