Opinion
November, 1906.
Steuer Hoffman, for appellant.
Hoadly, Lauterbach Johnson, for respondent.
In plaintiff's brief it is stated that the complaint was dismissed for the two following reasons:
1. The complaint did not show the negotiability of the note in failing to allege its endorsement by the maker, since the note was made to the maker's order.
2. The evidence showed the note to have been discounted and paid by A. Simon Co., and plaintiff failed to show that he was doing business as A. Simon Co.
The first reason was a sufficient one, for section 320 of the Negotiable Instruments Law, reads: "Where a note is drawn to the maker's own order it is not complete until endorsed by him."
Although allegations in a complaint are to be liberally construed, statements of legal conclusions cannot be considered statements of fact.
It is not necessary to inquire into the second reason.
There was no error in denying the motion to amend the judgment. The court, in rendering judgment, had already passed upon the question; and there was no reason why it should pass upon it a second time.
The order will, therefore, be affirmed, with costs. The judgment will be modified so as to eliminate the words "on the merits," and affirmed, with costs.
Present: GILDERSLEEVE, DUGRO and DOWLING, JJ.
Order affirmed, with costs. Judgment modified and affirmed, with costs.