
    Edward Dart, Plaintiff, v. Alfred Van Horn and Emily E. Van Horn, Defendants.
    (Supreme Court, New York Special Term,
    April, 1909.)
    Negotiable instruments —Actions — Complaint — Ownership.
    Where, in an action by the payee of a promissory note against the maker, the complaint alleges that plaintiff is the owner of the note, it is sufficient, though it fails to allege that plaintiff has not parted with the note or that he is also the ‘holder of the note.
    Demurrer by defendant Alfred Van Horn, to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action.
    Alfred Van Horn, defendant in person, for demurrer.
    Charles P. Bogart, for plaintiff, opposed.
   Giegerich, J.

The action .is by the payee of a promissory note against the maker, who demurs to the complaint for insufficiency. The demurrant contends that the allegation that the plaintiff is the owner of the note is a mere conclusion, but a similar averment has been held to be sufficient. Gurnee v. Beach, 40 Hun, 108; Maccarone v. Hayes, 85 App. Div. 41. It is further urged that the complaint is insufficient because it fails to allege that the plaintiff is also the holder of the note, but it is not necessary to allege in a complaint by a payee of a promissory note against the maker that the plaintiff has not parted with the note or that he is the holder. Niblo v. Harrison, 7 Abb. Pr. 447; Taylor v. Corbiere, 8 How. Pr. 385. In the case last cited Mr. Justice Harris, at page 388, pertinently observes: “ It certainly could not be required of him that he should aver, negatively, that since the note was transferred to him he had not transferred it to another person. It is enough that he has averred everything which it would he necessary to prove on the trial, if controverted, to entitle him to recover.” The demurrer is, therefore, overruled, with costs, with leave to withdraw the same and to answer upon payment of such costs within twenty days after the service of the interlocutory judgment to he entered hereon, with notice of entry thereof.

Demurrer overruled;  