
    LEE a. AINSLIE.
    
      New York Common Pleas;
    
    
      General Term, January, 1857.
    Frivolous Demurrer.—Appeal.—Orders.—Judgment.
    Appeal may be taken to the general term from an order of the special term giving judgment on a demurrer as frivolous, as from an order, and without waiting for judgment to be perfected.
    In an action against maker and endorser of a promissory note, the complaint contained an averment that the' note “ for value received lawfully came to the possession of these plaintiffs.”
    
      Meld, that this was a sufficient averment of title to the note in the plaintiff.
    Appeal from an order granting judgment upon a demurrer to a complaint, as frivolous.
    This action was brought by James Lee and Benjamin C. Lee, against James Ainslie and John J. Hicks. The complaint action was as follows:—■
    Title of the Cause.
    The plaintiffs complaining against the above-named defendants show to this court that at the city of Hew York on July 3,1856, the above-named defendant, James Ainslie, made his promissory note in writing, whereby thirty days after date he promised to pay to the order of himself five hundred dollars for value received; that said defendant Ainslie endorsed said note, and that subsequently, and before the maturity of said note, the defendant, John J. Hicks, endorsed the same; that said note, endorsed before the maturity thereof, and for value received, lawfully came into the possession of these plaintiffs; that said note, when it became due and payable, was duly presented for payment, which was refused, and that said note was duly protested for such non-payment—of all of which said John J. Hicks as such endorser had due notice; that said note is wholly due, no part thereof having been paid.
    Wherefore plaintiffs demand judgment, &c.
    McCunn & Moncrief, Plt'ffs' Att'ys.
    
    Verification-.
    The defendants demurred to this. complaint on the ground that it did not constitute facts sufficient to constitute a cause of action.
    The plaintiffs moved for judgment upon this demurrer as frivolous; and upon the hearing it was ordered that the motion be granted, the defendant to be permitted to answer within two days upon payment of ten dollars costs.
    The defendants now appealed direct from this order, without waiting for any judgment against them to be perfected.
    
      Dean & Townsend, for the appellants.
    —I. The demurrer is sufficient in form to raise the question whether the complaint shows a cause of action (Haire v. Baxter, 1 Seld., 357). A pleading that in its form is sufficient to create a material issue cannot be frivolous (Nichols v. Jones, 6 How. Pr. R., 355 ; Tremple v. Murray, Ib., 329 ; Snyder v. White, Ib., 321; Davis v. Patten, 4 Ib., 155; The Genesee Mutual Insurance Company, v. 
      Moynihen, 5 Ib., 321). The principle established by the cases last cited is, that an cmswer which denies a material allegation of the complaint—that is, which creates an issue—is not frivolous. Applying this principle to a demwrrer, it follows that a demurrer, which is sufficient to raise the question whether the complaint contains facts sufficient to constitute a cause of action, cannot be frivolous. The word “ frivolous,” as used in section 247 of the Code, qualifies “ demurrer,” and has no reference to the pleading demurred to. A demurrer, to be frivolous, must be defective in itself; and it is immaterial whether the pleading demurred to be good or bad, for the purpose of determining this question.
    II. The complaint is defective, and the demurrer well taken. 1. Because the complaint does not show that the note was ever put in circulation, as it does not allege that the maker or endorser ever endorsed or delivered the note to the plaintiffs or to any other person (13 How. Pr. R., 113 ; Chitty on Bills, 130-139 ; Caswell v. Bushnell, 14 Barb., 393). 2. The complaint does not show that the note came into the possession of the plaintiffs from either of the defendants, or from any person having a title to it, or a right to transfer it. 3. The complaint does not show that the note “ came into the possession of the plaintiffs” as owners. The court can as well infer that it came into their possession as agents, or attorneys, or bailees, or common-carriers, as to infer that it came into their possession as owners (Parker v. Totton, 10 How. Pr. R., 233). 4. The complaint does not show that at the time of the commencement of the action the note was in the possession of the plaintiffs, or that they were the lawful holders or owners of the note, or that they had any interest in it. The allegation that the note “ came into the possession of the plaintiffs before maturity” (without alleging that it was ever endorsed or delivered to them), is not sufficient for the court to infer that the plaintiffs were the owners at the time of the commencement of the action, which was about two months after the note became due. An allegation that the plaintiffs are the owner or holder, or some equivalent allegation, is material; for the party suing must be “ the real party in interest” (Code, § 111; Beach v. Gallop, 2 Code R., 66 ; Snyder v.White, Temple v. Murray, and The Genesee Mutual Insurance Company v. Moynihen, supra).
    
    
      III. A complaint is bad and demurrable, when it is so framed that two or more plaintiffs in different actions, upon the same statement of facts, undenied, would be entitled to a judgment at the same time,—if all the allegations in the complaint are true. How all the allegations in this complaint may be true, and had the note “come into the possession before maturity,” of any other person or persons, those persons might bring separate actions upon the note at the same time, making the same allegations, and they would be true; and yet, if these plaintiffs are entitled to a judgment in this action, the plaintiffs in the other actions would be entitled to the same.
    
      McCunn & Moncrief, for the respondents.
    —I. A decision of the court granting judgment for frivolousness of a demurrer or other pleading, is a judgment, and not an order. Judgment must first actually be entered before an appeal can be taken (Bentley v. Jones, 4 How. Pr. R., 335 ; King v. Stafford, 5 Ib., 30; S. C. 6 Ib., 127; Bruce v. Pinckney, 8 Ib., 397 ; Lewis v. Acker, Ib., 414; Bauman v. The New York Central Railroad Company, 10 Ib., 218 ; Martin v. Kanouse, 2 Abbotts' Pr. R., 390; Code, § 247).
    II. The complaint is sufficient. 1. It alleges that the note was made and endorsed by defendant Ainslie;—that the note was endorsed by defendant Hicks before its maturity;—and that the note before maturity came into the possession of the plaintiffs. This is sufficient to establish the plaintiffs’ title (Taylor v. Corbierre, 8 How. Pr. R., 385 ; Bank of Lowville v. Edwards, 11 Ib., 216 ; Chappel v. Bissell, 10 Ib., 274; Mitchell v. Hyde, 12 Ib., 460). 2. The complaint alleges the due presentment of the note at maturity; the non-payment of the same; and due notice of those facts to Hicks as such endorser. This is sufficient to hold the endorser (Speilman v. Weider, 5 How. Pr. R., 5 ; Chappel v. Bissell, 10 Ib., 274; Woodbury v. Sack-rider, 2 Abbotts’ Pr. R., 402; Code, § 162). 3. The complaint alleges that the whole of said note is due, no part thereof having been paid. This is sufficient to admit evidence of that fact.
    III. The complaint, stating a cause of action against defendant Ainslie, cannot be held bad on joint demurrer by both defendants upon the ground that it does not state facts sufficient to constitute a cause of action (Woodbury v. Sackrider, 2 Abbotts’ Pr. R., 402).
   By the Court.—Ingraham, F. J.

—This is an appeal from, an order granting judgment for the frivolousness of a demurrer.

It is objected that the judgment must first be entered before an appeal can be taken, but we have been in the practice of treating such appeals as properly taken from the order, and have held that we could review it as an order and not as a judgment. There have been various and conflicting decisions ón this point. I see no harm to arise from adhering to our former practice; and to the losing party the expense is less.

Whether or not the complaint is good, depends upon the answer to the question whether it contains allegations of every thing that the plaintiff would have to prove on the trial to sustain his action.

In such action he must prove his possession or title, the signatures of the maker and endorsers, the demand and notice of non-payment, and the amount due upon the note for principal and interest. These facts would entitle the plaintiff to recover, and they are all averred in the complaint in the present case.

It is not necessary, under the present system of pleading, for the plaintiff to aver that the payee delivered the note to him. He is required to state the facts as they exist, and the old system of pleading, which allowed the truth to be shown under a fictitious statement, is no longer in force. The cases referred to all assume that the allegation in the complaint that the plaintiff is the lawful holder of the note, when denied, forms a material issue. The words used in this complaint are, that the note, for value received, lawfully came into the possession of these plaintiffs. This is equivalent to the other form of alleging title. The demurrer admitting that the note came lawfully to the plaintiffs’ possession for value received admits thereby title.

We think the demurrer is frivolous, and that the complaint shows a good cause of action.

The order should be affirmed.  