
    Elizabeth Passut, Appellant, v. Marion M. Heubner, Respondent.
    (Supreme Court, Appellate Term, First Department,
    June, 1913.)
    Negotiable instruments — promissory note payable to two persons in the alternative—■ action on promissory note.
    A promissory note payable to two persons in the alternative creates a joint interest in the payees neither of whom can, in the lifetime of the other, maintain an action on the note without joining the other. .
    Bijue, J., dissents.
    Appeal from an interlocutory judgment of the City Court of the city of New York sustaining a demurrer on the ground of defect of parties plaintiff.
    Bernard H. Sandler (William J. Lewis, on brief), for appellant.
    Richard E. Weldon, for respondent.
   Page, J.

Though there are a few authorities to the. contrary (Samuels v. Evans, 1 McLean, 473; Spaulding v. Evans, 2 id. 139; Ellis v. McLemoor, 1 Bailey [S. C.], 13) the weight of authority in this country overwhelmingly supports the contention of the respondent that a promissory note payable to two persons in the alternative creates a joint interest in the payees and either cannot in the lifetime of the other sue thereon without joining the other joint obligee. Willoughby v. Willoughby, 5 N. H. 244; Osgood v. Pearsons, 70 Mass. 455; Carr v. Bauer, 61 Ill. App. 504; Westgate v. Healy, 4 R. I. 523; Quinby v. Merritt, 11 Humph. (Tenn.) 440; Collyer v. Cook, 28 Ind. App. 272, 275.

The case of Stelling v. Grabowsky, 46 N. Y. St. Repr. 700, relied upon by the appellant, is a case in which the other joint obligee was deceased. By reason of his right of survivorship the remaining obligee was entitled to sue upon the obligation alone; and also held, that, no demurrer having been interposed to the complaint, the objection that the action could not be maintained by one of the joint obligees was waived and could not be taken by answer.

There seems to be no direct authority in this state, but upon principle and weight of authority in other jurisdictions I am of the opinion that the obligation is joint and that the demurrer was properly sustained for defect of parties plaintiffs.

The interlocutory judgment should be affirmed, with costs.

Seabury, J., concurs.

Bijur, J. (dissenting).

Plaintiff sues defendant on her promissory note, made.to.the order of plaintiff or another. The action upon a note in that form may be maintained by either of the payees without joining the other. See Stelling v. Grabowsky, 46 N. Y. St. Repr. 700. Moreover, in Walrad v. Petrie, 4 Wend. 575, it has been been held that a note in this form is not a negotiable instrument because not payable absolutely; and that is based on the holding that the meaning of such a note is that it is payable to either payee on condition that it has not been paid to the other.

Defendant also claims that plaintiff fails to plead that “he is in possession and the lawful holder ” of the note; but the complaint alleges that the other payee has no claim or interest adverse to the plaintiff, which, in a liberal construction of the pleading is, I think, sufficient. Furthermore, as the note in this form is not a negotiable instrument (supra) no such allegation is necessary.

The judgment should be reversed, with costs, with leave to defendant to interpose an answer within six days.

Interlocutory judgment affirmed, with costs.  