
    CHADWICK a. BOOTH.
    
      Supreme Court, First District ;
    
      Special Term October, 1861.
    Pleading.—Denial oe Title to Mote.
    Where a complaint alleges that a note was indorsed by the defendant, and after-wards transferred to the plaintiff, and that the latter is possessed thereof, an answer denying the transfer to him puts his title in issue, although it does not specially deny his possession of the note. Possession is a mere incident of the transfer, and evidence of title,—not a distinct allegation.
    
      It seems, that an averment in a complaint that.the plaintiff is possessed, or is the lawful owner and holder of a note, is superfluous and embarrassing.
    Motion, by the plaintiff, for judgment, under section 247 of the Code.
    The facts are fully stated in the opinion, except as to the first defence of the answer, concerning which the court expressed no opinion.
    
      
      J. M. Van Cott, for the motion.
    —I. The first defence is friv- ■ olóus. (The argument on this point was admitted.)
    II. The second plea admits the making of the note; admits that plaintiff “ is possessed of” it (an allegation in the complaint not denied); and then “ denies that they have any knowledge or information sufficient to- form a belief whether or not the plaintiff is the lawful owner and holder of the said note.” This ánswer is clearly frivolous. 1. It is an express averment that the defendants have no knowledge, information, or belief that the' plaintiff “ is not the lawful owner and holder of the note.” 2. ' When an answer admits a state of facts, on which plaintiff is entitled to judgment without making any proof, defendants can prove in bar of the action only such facts as are affirmatively set up in the answer. (McKyring a. Bull, 16 N. Y., 297.) 3. Where the suit is on a promissory note, and the answer admits facts which render it unnecessary for plaintiff to prove his title to it, the defendant cannot prove title out of the plaintiff, unless his answer sets up title in a third person. And an answer is frivolous which admits the one state of facts without affirming the other. (Catlin a. Gunter, 1 Duer, 253 ; Higgins a. Rockwell, 2 Ib., 650-653 ; Fleury a. Roget, 5 Sandf., 646.) The “ possession” (admitted as a fact) shows, as matter of law, that the plaintiff is the “ lawful owner' and' holder.” The admitted fact importing that, and the law implying that,—it is frivolous for the defendants to say (as they in effect say) they do not know enough “ to form a belief” whether such legal inference from the admitted fact is or is not correct. (Witherspoon a. Van Doler, 15 How. Pr., 266.)
    III. The defence (bad in law) is clearly interposed in bad faith, to- obtain delay, and the mischiefs that spring from delay; Defendants could open their bill-book and identify the note; they could ask to inspect and identify it: but they shut their bill-book,- they. shut, their eyes, and then say they cannot see and do not know. The law does not sanction wilful blindness.
    
      William D. Booth, opposed.
    —I. The indorser should trace his title from the payee of the note. Parker a. Totten, 10 How. Pr., 233.
    H. If the complaint does not trace the indorsements of which plaintiff' acquired title, it should contain an averment of delivery before maturity, and for value. (Marshall a. Richmond, 12 How. Pr., 452 ; Lord a. Cheeseborough, 4 Sandf., 697.)
    III.. And -an answer only denying that plaintiff was lawful owner and holder could not be considered frivolous. (McKnight a. Hunt, 3 Duer, 615 ; Metropolitan Bank a. Lord, 1 Abbotts’ Pr., 185.)
    IV. The plaintiff is not indorsee, but claims by delivery. See Hedge a. Sealy (9 Barb., 214), as to what will be notice of equities to a holder. (15 Johns., 270 ; 1 Bosw., 449 ; 2 Ib., 613.)
   Barnard, J.

—Motion for judgment, on the ground of the frivolousness of the answer.

The allegations in the complaint whereby plaintiff seeks to show his title to the note are, “ and thereupon duly indorsed the said note by their said firm-name in blank, and duly transferred and delivered the same, and afterwards the lawful holders thereof duly transferred and delivered the same so indorsed to the plaintiff, who is now possessed thereof, and the lawful owner and holder thereof.”

The second defence is: “ Defendants allege and aver, that the note was made and indorsed by defendants, and by them delivered to a person qther than the plaintiff, with whom defendants had business transactions, and defendants deny that they have any knowledge or information sufficient to form a belief whether or not said -note was thereafter duly transferred and delivered by the lawful or other- holders thereof to the .plaintiff; and the defendants further deny that they have any -knowledge or information sufficient to form a belief whether or not the plaintiff is the lawful owner and holder of said note.”

Plaintiffs allege that they became entitled- to the note by transfer and delivery; this the answer denies. That denial is ■sufficient to put the ownership in issue. The addition of the averment, that “ plaintiff is now possessed of it,” is entirely superfluous. The law would have presumed this from the previous allegation. Possession gives no title, unless it be the result of indorsement and delivery, or at least of delivery from the lawful owner. Plaintiff has chosen to aver that he did so become possessed, and the defendants have denied that averment. It is true that on the trial the mere production by plaintiff from1 his possession of a note indorsed in blank (the making and indorsement being admitted, but the transfer and delivery being in issue) would, in the first instance, establish his title.

This, however, is on' the ground that possession of .such note is prima-facie evidence of the transfer and delivery thereof by a previous lawful owner to the possessor; but the defendant (his answer raising that issue) could nevertheless disprove that the note was ever transferred and delivered to the plaintiff by a previous lawful owner, which he might do in various ways, as by showing that the note had been - lost by the owner and found by the plaintiff, or that it had been stolen from the owner, and delivered by the thief to the plaintiff.

The facts to be proved in such case (to wit, a case where the making and indorsement in blank are admitted, but an issue is raised as to the delivery and transfer to the plaintiff), to show the plaintiff’s title, and to sustain his action, are transfer and delivery by a lawful person to .him. Possession of a note is never evidence to prove these facts.

Consequently, an answer which denies the facts is sufficient, without denying an averment of a matter which is, at best, but prima-facie evidence of the facts denied.

The- denial that the plaintiff is the lawful owner and holder is of just as much and no more effect^ as the averment in the complaint that the plaintiff is the lawful owner and holder.

If the plaintiff claims any thing from this allegation in his complaint, then the allegation is fully met; if he claims nothing from itj then the denial goes for nothing, and both the allegation and denial are superfluous. Indeed, this allegation should not be inserted in the complaint; it only opens the door for embarrassment. '

Motion denied, on the sole ground that the title of the plain- ' tiff to the note is sufficiently put in issue, without prejudice to the right of the plaintiff to make such motion, under section 152 or 160, -as he may be advised.  