Palmer v. Smedley , 6 Abb. Pr. 205 ( 1858 )

Davies, J.

As to the first cause of action, it is clearly defective. It not only does not aver that the plaintiff is the real party in interest, but avers that the note sued on is not the property of the plaintiff, and that he is not the lawful owner and holder of the same, but that it is the property of another, and which other is the lawful owner and holder thereof. This is in direct conflict with section 111 of the Code. The presumptions of law which would arise from the fact that the plaintiff, being in possession of the note, is the lawful owner and holder thereof, is rebutted by the averment that he is not such lawful owner and holder.

In reference to the second cause of action, there is no averment of any indebtedness to the plaintiff by reason of the matters therein stated, or of any right therein on his part to demand of the defendant the money therein mentioned. The averment is, that the amount of the subscription is now due and owing to the said college, thus negativing any indebtedness to the plaintiff.

Judgment must be given for the defendants on the demurrer, with costs: liberty to plaintiff to amend in twenty days.