
    George S. Holmes, Respondent, v. Arthur H. Ely, Appellant.
    
      Satisfaction of a mortgage, under an agreement by the debtor to pay the debt — action by an assignee of the original creditor to recover an unpaid balance — when it is based on the promise and not on the bond—if on -the bond the obligee is a necessary party—facts impliedly averred considered on a demurrer — they may be traversed.
    
    The complaint in an action alleged that the defendant executed and delivered to Samuel I. Acken his bond conditioned for the payment of the sum of §20,000 with interest; that he executed, as collateral security for the payment of said bond, a mortgage upon certain premises; that thereafter Acken, upon the request of the defendant and upon the defendant’s express, promise to pay the said sum of §20,000, satisfied the mortgage; that subsequently the defendant, in pursuance of his promise to pay the §20,000, paid to Acken §9,000, leaving a balance still due and owing to Acken of §11,000 with interest from the 1st day of March, 1901; that no part of this sum had been paid, although frequently demanded; that the said Samuel I. Acken had assigned all his right, title and interest in said sum of §11,000 with interest to the firm of Samuel I. Acken & Sons, and that said firm had subsequently transferred the claim to the ’ plaintiff. ~
    
      Held, that the complaint impliedly averred that Samuel I. Acken, upon the express promise of the defendant to pay the indebtedness, relinquished his mortgage security and relied upon the new promise in place of the bond which had been given;
    That the action was not upon the original bond, but was upon such new promise, and that the complaint stated facts sufficient to constitute a cause of action. Semble, that if the action had been brought upon the original bond it would have been necessary, such bond not having been assigned, to make Acken a party defendant.
    Upon the hearing of a demurrer the pleading demurred to will he held to state all facts that can he implied from the allegations by reasonable and fair intendment; facts so impliedly averred are traversable in the same manner as though ¡directly stated.
    Appeal by the defendant, Arthur H. Ely, from an interlocutory judgment of the Supreme Court .in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 5th day of August, 1903, upon the decision of the court, rendered after a trial at the Westchester Special Term, overruling the defendant’s demurrer to the plaintiff’s complaint.
    ,Justus A. B. Cowles [Charles P. Cowles with him on the brief], for the appellant.
    
      Frederick Hulse, for the respondent.
   Woodward, J.:

The plaintiff brings this action as the assignee of a claim owned and held by the firm of Samuel I. Acken & Sons against the defendant, and the latter demurs to the complaint upon the grounds (1) “That it appears upon the face of the plaintiff’s complaint herein that there is a defect of parties' defendant in that Samuel I. Acken is' not made a party defendant herein,” and (2) “ That it appears upon the face of the plaintiff’s complaint herein that the complaint does not state facts sufficient to constitute a cause of action.” This demurrer has been overruled at the Special Term, and the defendant appeals from the interlocutory judgment entered.

We are convinced from an examination of the complaint that it is not open to the objections urged, and that it does state facts sufficient to constitute a cause of action. The theory of the demurring defendant is that the action was brought upon a certain bond, mention of which is made in the 1st paragraph of • the complaint, and-that the person to whom this bond was made and delivered, it not having been assigned, should have been made á ‘ party defendant. We think this theory is not justified by the facts set forth in the complaint. The complaint alleges, on information and belief, that the defendant, for the purpose of securing the payment to one Samuel I. Acken of the sum of $20,000 with interest thereon, on or about the 23d day of December, 1898, executed and delivered to the said Acken a bond bearing date on that day, sealed with his seal, whereby he bound himself, his heirs, executors and administrators, in the penalty of $40,000, and upon the condition that the same should be void if the said defendant should pay to the said Samuel I. Acken, his executors, administrators or assigns, the sum of money first above mentioned; that the defendant on the same day, and as collateral security, duly executed, acknowledged and delivered a mortgage upon certain premises; that thereafter the defendant requested the said Samuel I. Acken to cancel the lien of said mortgage and satisfy the same, and that the said Samuel I. Acken upon the request of the defendant and upon the defendant’s express promise to pay the said sum of $20,000, agreed to cancel the said mortgage and that he did execute and deliver a satisfaction piece to the said defendant; that subsequently, and about the month of May, 1900, the defendant, in pursuance of his promise to pay the $20,000 above mentioned,‘did pay to the said. Samuel I. Acken the sum of $7,000, and that subsequently the defendant paid various sums aggregating $2,000, leaving a balance still due, and owing to the said Samuel I. Acken of $11,000, with interest, from the 1st day of March, 1901, no part of which has been paid, though frequently demanded. The complaint then sets forth an assignment of all the right, title and interest of the said Samuel I. Aclcen in and to the said sum of $11,000, with interest as aforesaid, to Samuel I. Acken, Joseph Acken and.Samuel I. Acken, Jn, composing the firm of Samuel I. Acken' & Sons, and a subsequent transfer of the said claim by the above firm to the plaintiff.

If the-plaintiff had alleged that on a given day the defendant owed Samuel I. Acken the sum of $20,000, and that the defendant had promised to pay the same," that he. had paid from time to time sums aggregating $9,000, and that there was still due and unpaid $11,000, though often demanded, and that this claim had been duly assigned to the .plaintiff, there would be no doubt that a good cause of action was stated, and we fail to discover any fatal defect in the complaint because the pleader has set forth the facts out o.f which this claim arose. The action is not upon the original bond, but upon the express promise of the defendant to pay the "amount, in consideration of the discharge of the mortgage which was given as collateral to such bond, and the complaint will be deemed to be sufficient whenever the requisite allegations can be fairly gathered from all the averments, though the statement of them may be argumentative and the pleading deficient in logical order and in technical language. The .pleading will be held to state all facts that can be implied from the allegations by reasonable and fair intendment,, and facts so impliedly averred' are traversable in the same manner as though directly, stated. (Sage v. Culver, 147 N. Y. 241, 245, and authorities there cited.) We think the allegations of this complaint impliedly aver that Samuel I. Acken, upon the express promise of the defendant, to pay this indebtedness^ relinquished his mortgage security and relied upon the new promise in place of the bond which had been given, and that both parties treated;, the matter in this light, the defendant paying from time to time upon this new promise pmtil he had discharged. $9,000 of the indebtedness. Mr. Acken could have sued upon this promise independent" of the bond; and the plaintiff, having title through Hr. Acken to the claim asserted in this action, has a right to recover the amount due, and there is no reason to anticipate that any one else will be able to recover upon the bond.

The interlocutory judgment should be affirmed, with costs, and the defendant should be permitted to answer 'upon the payment of costs.

All concurred.

Interlocutory judgment affirmed, with costs.  