
    Thomas M. Hodgens, Appellant, v. Herbert T. Jennings, Respondent.
    First Department,
    February 2, 1912.
    Bills and notes — action against indorser—defense—judgment on pleadings.
    In an action by the holder of a promissory note against an indorser a defense alleging that plaintiff made false representations to induce •defendant to purchase certain receivers’ certificates for which the note was given is insufficient in law in the absence of an allegation that the representations were false to the knowledge of the plaintiff when made. So, also, a defense alleging an extension of the time of payment of the note is insufficient™, law in the absence of an allegation that there was a valid agreement supported by consideration for such extension of time.
    So, too, a defense containing nothing but conclusions of law is insufficient. A defense setting forth a parol agreement whereby it is claimed.that the indorsers became liable as guarantors only is insufficient where, under the law of the case as previously declared, such parol agreement cannot be proved in the action.
    Other defenses examined, and held, to be insufficient. ,
    .Where an amended answer does not adequately deny the allegations of the complaint and contains only defenses which are insufficient in law a •motion by plaintiff for a judgment on the pleadings should be granted.
    Appeal by the plaintiff, Thomas M. Hodgens, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 11th day of October,, 1911, which was resettled, denying the plaintiff’s motion for judgment on the pleadings.
    
      John N. Blair, for the appellant.
    
      Henry C. Henderson, for the respondent.
   Dowling, J.:

The plaintiff appeals from an order denying his motion for judgment upon the pleadings. . The complaint sets forth the making of a promissory note in writing by the Manhattan Securities Company, a corporation; to the order of the defendant and three others; its indorsement by defendant and the other payees, and its delivery, so indorsed before maturity, to plaintiff for value; its presentation and demand for payment and refusal thereof; its protest for non-payment; and that no' part thereof' has been paid, except the sum of $500. The amended answer undertakes to set up certain separate' defenses, upon the invalidity and insufficiency of which the motion was based. We find that all these defenses are insufficient in law, and the motion should, therefore, have been granted. ' At the outset it may be noted that the amended answer sets up no adequate' denial of the allegations of the complaint, and such claimed denials as it sets up are embraced in the fourth defense alone, and their phraseology is such that they are not denials of any allegation contained in the complaint, but simply denials of assumed facts nowhere claimed by plaintiff and forming no part of his cause of action. There is no general or specific denial of the facts actually set forth in the complaint. The first defense, as stated in paragraphs 1 to 6 inclusive of the answer (though not separately numbered), is insufficient, because under the law of this ease as laid down upon the decision of the motion for judgment on. the original answer, the indorsement by the defendant of the note constitutes a written contract of warranty, that on due presentment the note shall be paid, and that if it be dishonored he will pay the amount thereof to the holder. * * * In any event the defense would have no validity, for the written contract of indorsement - cannot be varied by any implied agreement not in writing.” (See, also, Bird v. Kay, 40 App. Div. 537.) The second subdivision of the first defense is also insufficient in law, for the reason that while it undertakes to set up false representations made by plaintiff to induce defendant to purchase the receiver’s certificates for which the note in suit was given, there is no allegation that these representations were false to the knowledge ■ of plaintiff when made' and scienter is one of the necessary elements of fraud. (Kountze v. Kennedy, 147 N. Y. 124.) The second defense set up is insufficient in law, because there is no allegation that there was any valid agreement, supported by consideration, for the extension of the time of payment of the .note. (National Citizens’ Bank v. Toplitz, 178 N. Y. 464.) The third defense is insufficient in law because it contains nothing save conclusions of law, without any allegations or denials constituting a defense. ' The fourth defense is insufficient in law because under the law of the case as heretofore declared the parol agreement whereby it is claimed the indorsers became liable as guarantors only cannot be proved, and further because under the Negotiable Instruments Law (Consol. Laws, chap. 38 [Laws of 1909, chap. 43], § 118) joint payees or joint indorsees who indorse are deemed to do so jointly ' and severally, wherefore an action lies, against any one of them individually.

The order appealed from must, therefore, be reversed, with ten dollars costs and disbursements, and the motion for judgment granted, with ten dollars costs, but with leave to defendant to serve an amended answer within twenty days upon payment of the costs, entry of judgment in the meantime to be suspended. . ■ ■

Ingraham, P. J., McLaughlin, Laughlin and Miller, Jj., concurred. . . .

Order reversed, with ten dollars costs ¡and disbursements, ' and motion for judgment granted, with ten dollars costs, but' with leave to defendant to amend answer On payment of costs.  