Assuming the New York law relating to non-negotiable notes and the pleading of foreign law was applicable, counsel for defendant cites numerous cases sustaining his position that consideration must be alleged in a complaint on a non-negotiable note and that foreign law must be pleaded despite the liberality of the New York Civil Practice Act, 344-a. First National Bank of Pittsburgh v. Stallo, 1st Dept. 1914, 160 A.D. 702, 145 N.Y.S. 747; Spear v. Associated Producing & Refining Corp., 1923, 120 Misc. 518, 199 N.Y.S. 84; Kerr v. Smith, 1st Dept. 1913, 156 A.D. 807, 142 N.Y.S. 57; Donnelly v. Bauder, 4th Dept. 1926, 217 A.D. 59, 216 N.Y.S. 437; Greiner v. Freund, 1st Dept. 1955, 286 A.D. 996, 144 N.Y.S.2d 766; Schumann v. Loew's, Inc., 1951, 199 Misc. 38, 102 N.Y.S.2d 572; Pfleuger v. Pfleuger, 4th Dept. 1951, 278 A.D. 247, 105 N.Y.S.2d 427; Carbone v. Carbone, 1951, 200 Misc. 437, 109 N.Y.S.2d 853. Plaintiff replies that he has conscientiously followed Official Form 3 in the Appendix of Forms to the Federal Rules of Civil Procedure and pursuant thereto pleaded the legal effect of the note in all its simplicity, ever mindful of Rule 84 which provides, 'The forms contained in the Appendix of Forms are sufficient under the rules and are intended to indicate the simplicity and brevity of statement which the rules contemplate.'
Accordingly, I find no merit in the theory proffered by the Ingrams.Moore v. Associated Producing Refining Corp., Del.Ch., 121 A. 655, 656 (1923) (citing Gray v. Newark, Del.Ch., 79 A. 735, 739 (1911)).Beal Bank, SSB v. Lucks, Del.Ch., C.A. No. 14896, mem. op., Steele, V.C., 1998 WL 778362 (Oct. 23, 1998).
Therefore, they were not negotiable instruments (Neg. Inst. Law, § 20; Owens v. Blackburn, No. 1, 161 App. Div. 827) ; and may not be deemed prima facie to have been issued for a valuable consideration under that statute (Neg. Inst. Law, § 50); nor is the rule applicable making absence or failure of consideration a matter of defense (Id. § 54). As there is no allegation in the complaint that these notes were given for value, it would be necessary for the plaintiff to make proof of consideration. ( Deyo v. Thompson, 53 App. Div. 9; St. Lawrence County Nat. Bank v. Watkins, 153 id. 551; Kerr v. Smith, No. 1, 156 id. 807; Spear v. Associated P. R. Corp., 120 Misc. 518.) The allegations in the answer, even though not a commendable form of pleading, were sufficient to raise the question of want of consideration. ( St. Lawrence County Nat. Bank v. Watkins, supra; California Packing Corp. v. Kelly S. D. Co., 228 N.Y. 49, 52.)