
    JOSEPH C. WOODRUFF and another, Respondents, v. JOHN LEONARD, Appellant.
    
      Promissory note—complaint in, action against indorser—what mustie alleged, in— Oode, § 162 — Demurrer—when not frivolous.
    
    This action was upon a promissory note made by S. & M., payable to the order of the plaintiffs, and indorsed by the defendant. The complaint alleged that the plaintiffs were the owners of the note, and “ that the defendant indorsed said note at the time of the making thereof.” The note was set out in full, but a copy of the indorsement was not given. The defendant demurred. The plaintiffs moved for an order directing judgment for them, on the ground that the demurrer was frivolous, which was granted. Held, that this was error; that in order to entitle the plaintiffs to recover, it was necessary for them to allege the special circumstances charging the defendant as first indorser, to rebut the presumption that he was second indorser.
    Appeal from a judgment entered on an order made at Special Term, directing judgment for the plaintiffs on the ground that the demurrer interposed by the defendant, was frivolous.
    The facts are stated in the opinion.
    
      Geo. W. MoAdam, for the appellant.
    
      M. P. Stafford, for the respondents.
   Davis, P. J.:

This action is brought against defendant, as indorser of a promissory note. The plaintiffs allege, “that on or about the 20th day of February, 1873, the plaintiffs, for a good and valuable consideration, became the owners of a certain negotiable promissory note, of the terms and tenor following, to wit:

“ $500. “ New York, February 20th, 1873.
“ Six months after date, we promise to pay to the order of Woodruff & Houston, five hundred dollars, at Martin & Runyan’s, 40 Wall street, with seven (7) per cent interest from date. Yalue received.
“SIMMONS & MoPARTLIN.”

That the defendant indorsed said note, at the time of the making thereof.

The complaint then avers presentation, protest and notice, and non-payment, and demands judgment for the amount of the note, with interest and costs. The defendant demurred, on the ground that the complaint did not state facts sufficient to constitute a cause •of action against him. The court, on proper application at Chambers, ordered judgment for plaintiff, on the ground that the demurrer was frivolous, and judgment- was thereupon entered, from which the defendant appeals. It seems to have been supposed that the complaint was good, under section 162 of the Code. That section provides, that in an action “ founded upon an instrument for the payment of money only, it shall be sufficient for the party to give a copy of the instrument, and state that there is due to him thereon, from the adverse party, a specified sum which he claims.” But the complaint is not framed under this section. The action is against the indorser only, and the instrument on which it is founded, is the contract of indorsement upon the note. The note is set forth, but no copy of the indorsement is given. In tuat respect, the complaint contains only the averment that the defendant indorsed the note, without setting out a copy of the indorsement, and therefore it fails to comply with section 162. But if it had set out a copy of the indorsement, in Time verba, it would probably have been essential, since the plaintiffs are payees of the note, to allege the special circumstances charging the defendant as first indorser, to rebut the presumption that his relation to the paper, was that of second indorser.

The case, therefore, presents the simple question, whether, upon the facts averred, the plaintiffs are not presumptively the first indorsers, and the defendant the second indorser, so that it is incumbent on the plaintiffs to aver the facts and circumstances, to ■overcome the legal presumption, and entitle them to sue the defendant as indorser.

In Moore v. Cross, that was done, and, "upon the facts averred and proved, the recovery was sustained. In Bacon v. Burnham, it was not done either by averment or proof, and the recovery was reversed.

In the last named case, Bacon, J., said: “The note is made payable to Sweezy, or his order; and being indorsed by the defendant, the legal presumption from this simple fact (nothing appearing to show that he intended to assume any other character), is, that his responsibility was that of second indorser, with all the rights, and subject only to the liabilities of that position. ■ It must be supposed, in the absence of any proof to the contrary, that, perceiving the name of the payee in the note, he indorsed it on the presumption that the name of such payee, to whose order it was made payable, would also, at some time, appear on the note; for only thus would it become negotiable.” The authorities, cited by him, are Herrick v. Carman, Seabury v. Hungerford, Ellis v. Brown, Moore v. Cross; and, in the face of so many authorities, it is not easy to say that the demurrer is frivolous. We think the order, holding the demurrer to be frivolous, was erroneous, and that the judgment based thereon must be reversed, and the motion for judgment on the demurrer denied.

Daniels and Beady, JJ., concurred.

Judgment reversed, and motion denied. 
      
       See Conkling v. Gandall, 1 Keyes, 228.
     
      
       19 N. Y., 227.
     
      
       37 N. Y., 614.
     
      
       12 Johnson, 159.
     
      
       2 Hill, 80.
     
      
      
         6 Barb., 282.
     
      
       19 N. Y., 227
     