
    Lord and others v. Chesebrough and others.
    In a complaint upon an instrument for the payment of money only, if the plaintiff’s name do not appear in or upon the instrument, he must connect himself with it by some suitable averment. It does not suffice,'under section 162 of the code as amended in 1851, merely to set forth a copy of the instrument with an averment that a specified sum is due to the plaintiff thereon.
    Accordingly, where the complaint set forth a copy of a note and indorsement, by which it did not appear that the plaintiff was a party to either the note or indorsement, and then further averred that there was due to the plaintiff on the note the amount thereof with interest, it was held that the complaint was insuffi- , cient.
    An answer is not frivolous, which denies a fact essential to the plaintiff’s recovery, although there be no averment of such fact in the complaint.
    January 31, 1852.
    Motion to strike out an answer as frivolous and for judgment. The complaint states, on information and belief, that the defendants made and indorsed a promissory note, of which the following is a copy:
    
      “ New Yorlc, March 15, 1851.
    “ $2261.01. Eight months after date we promise to pay to the order of Chesebrough, Stearns & Co., twenty-two hundred and sixty-one w. dollars, value received in merchandise of Hammerling, Mayet & Co.
    (Signed,) “ Chesebrough, Stearns & Co.
    (Indorsed,)
    “ Chesebrough, Stearns & Co.”
    The complaint then alleges “ that there is due to the plaintiffs on the said note, from the defendants, $2261.01, with interest,” &c.; for which they demand judgment.
    The answer sets forth that the defendants have not any knowledge or information sufficient to form a belief, 1. whether or not the note was ever transferred or delivered to the plaintiffs ; or 2. whether or not the plaintiffs are the lawful holders or owners of the note. The answer also objects to the complaint that it does not state facts sufficient to constitute a cause of action.
    
      Soioe & Treadwell, for the plaintiffs.
    
      A. Hilton, for the defendants.
   Sandford, J.,

(with the concurrence of all the Justices of the court.) — The answer traverses two facts, one or the other of which must be proved to give the plaintiffs a right to maintain their suit. But neither of these facts is alleged in the complaint. It may be a fair inference that one or both are true, from the allegation that there is due to the plaintiffs on the note the pum for which it was given, but that is very different from an allegation. Although not in answer to any thing stated in the complaint, we cannot say an answer is frivolous which denies what is essential to the plaintiffs’ right of action.

We think, on-a full consideration of the subject, that the complaint is defective. It should show in some way the connection between the plaintiffs and the note, i. e., that it was indorsed or transferred to them, or that they are the holders or owners of the note. As it now stands, there is no such allegation. The indorsement as copied, if that be deemed a part of the- instrument, is in blank, and there is no averment that the note was delivered to the plaintiffs. The inference is rather, that the defendants, when they made and indorsed the note, delivered it to Hammerling, Mayet & Co., from whom the consideration proceeded.

The plaintiffs have proceeded on the supposition that section 162 of the code of procedure, as amended in July last, authorizes this mode of pleading. It provides that when the action or defence is founded on an instrument for the payment of money only, it shall be sufficient for a party to give a copy and to state that there is due to him thereon a specified sum, &c. We cannot imagine that it was intended by this to dispense with the necessity of the claimant’s connecting himself -in some mode with the instrument when his name does not appear upon it in any manner. When such is the fact, the action is founded on something more than the instrument, and that something must be averred.

In this case, the plaintiffs’ names do not appear in the note or the indorsement. The action is founded not only on what does appear by a copy of the instrument, but upon the fact that the note was delivered to them on its transfer by the blank indorsement, or that they became the holders or owners of the note. The 162d section of the code does not relieve the plaintiffs from making one or the other of these averments. Without anticipating other questions that are suggested by this new provision of the code, we are clear that this complaint is insufficient.

It was said that this amendment of section 162, was a virtual re-enactment of the statute which allowed a copy of a bill or note to be served with a declaration on the money counts against all or any of the parties. Rut that statute made no change in the form or rule of pleading. The defendant, in a suit under it, never pleaded to the bill or note indorsed on the declaration; his plea was to the declaration itself, the common counts. Hence, there is no analogy between the two enactments so far as the question of pleading is concerned.

Motion denied, without costs, and with leave to the plaintiff to amend his complaint.  