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App. Div.] FIRST DEPARTMENT, MARCH TERM, 1899. demurrer. The allegation in this case is that the note having been made by the defendant Julia, payable to her order, was thereafter and before the inaturity thereof duly indorsed by defendant Robert, and as thus indorsed it was delivered to the Murray Hill Bank for value. This allegation necessarily implies that the note was delivered by the maker. As was said in Prindle v. Caruthers (15 N. Y. 425, 429), " A complaint thus worded implies that the plaintiff owns the instrument in some legal manner of deriving title," and thus is equivalent to an allegation that the note was negotiated by the maker. It is well settled that upon demurrer the complaint is deemed to allege what can be inplied from the allegations therein, by reasonable and fair intendment, and facts impliedly averred are traversable in the same manner as though directly averred. (Marie v. Garrison, 83 N. Y. 14, 23.) And “it is not sufficient to sustain a demurrer to show that the facts are imperfectly or informally averred, or that the pleading lacks definiteness and precision, or that the material facts are argumentatively stated.” (Milliken v. Western Union Tel. Co., 110 N. Y. 403, 40s.)
We think, therefore, that the complaint in substance averred that the notes in suit were negotiated by the maker, and that within the statute the note was payable to bearer.
It follows that the judgment appealed from was right, and it is affirmed, with costs, with leave to the defendants to withdraw their demurrers and answer over upon payment of costs in this court and the court below.
VAN BRUNT, P. J., BARRETT, RUMSEY and O'Brien, JJ., concurred.
BARRETT, J. (concurring):
I desire to add to what Mr. Justice INGRAHAM has said that I do not think that the mere allegation of the making of the note here imports delivery. That is undoubtedly the rule where the payee is a real person other than the maker. That rule, however, does not apply where the note is made payable to the order of the maker or to a fictitious person, or to bearer, or to bills payable or the like. The making of such a note imports delivery to no one in particular. Where, however, in one of the latter class of cases, the plaintiff avers, in addition to the making, that the note was delivered to him for
FIRST DEPARTMENT, MARCI TERM, 1899.
(Vol. 38. value, that allegation imports such delivery by the maker. This was expressly held in Mechanics' Bank v. Straiton (3 Keyes, 365). If the defendants desired to have the allegation that "it (the note made by Julia M. Clyde) was delivered to the said Murray Hill Bank for value" made more definite and certain, they should have moved for that relief. The allegation as it stands imports that it (the note) was delivered by the defendant Julia M. Clyde to the Murray Hill Bank for value.
That allegation, with such import, is equivalent to the allegation required by the statute. If delivered to the bank by the maker for value, it was thereby negotiated by the maker.
Judgment affirmed, with costs, with leave to defendants to withdraw demurrers and answer over upon payment of costs in this court and in the court below.
NORMAN C. RAFF and Frank R. GAMMON, Respondents, v. KOSTER,
BIAL & COMPANY, Appellant.
- a bill of particulars is an extension of the pleading a judgment falls with the
An order granting a motion for a bill of particulars cannot be reviewed as an
“intermediate order” on an appeal from a judgment entered upon an order
striking out the defendant's answer. The “intermediuite order” mentioned in section 1316 of the Code of Civil Pro
cedure, which may be brought up for review on an appeal from a final judgment, is such an order as, if reversed, would take away the foundation of the judg
ment or make the trial or the judgment entered invalid or without support. A bill of particulars is simply an extension of the pleading in relation to which it
is ordered. Where an order striking out an amended answer and the order awarding the plain
tiffs judgment upon such first-mentioned order are reversed, the judgment resting upon such orders will also be reversed.
APPEAL by the defendant, Koster, Bial & Company, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of New York on the 2d day of December, 1898, upon an order striking out the defendant's amended answer, with notice of an intention to bring up for review upon such appeal an order made at the New York Special Term and entered
App. Div.] FIRST DEPARTMENT, MARCH TERM, 1899. in said clerk's office on the 27th day of July, 1898, requiring the defendant to serve a further bill of particulars of its counterclaim, and also an order made at the New York Special Term and entered in said clerk's office on the 7th day of November, 1898, as resettled by an order entered in said clerk's office on the 16th day of November, 1898, striking out the amended answer of the defendant, for failure to serve such further bill of particulars; and also an order made at the New York Special Term and entered in said clerk's office on the 1st day of December, 1898, as resettled by an order entered in said clerk's office on the 17th day of December, 1898, awarding the plaintiffs judgment upon the order striking out said answer, and granting the plaintiffs an extra allowance.
Edward W. S. Johnston, for the appellant.
James Harold Warner, for the respondents.
On July 27, 1898, an order was made requiring the defendant to serve a further bill of particulars of the defendant's defenses and counterclaims in the amended answer. In compliance with this order it seems that the defendant served a bill of particulars which the plaintiffs claimed was not a compliance with the order, and subsequently the plaintiffs moved upon affidavit for an order striking out the amended answer of the defendant for non-compliance with said order requiring a further bill of particulars. That motion was granted and it was ordered that the defendant's amended answer be in all respects stricken out. The plaintiffs then made a motion upon notice for an order directing the clerk to enter judgment for the plaintiffs for the sum of money and interest demanded in the complaint. This motion was granted and the plaintiffs were given an additional allowance. Upon this order judgment in favor of the plaintiffs was ordered, and this appeal is from such judgment.
In the notice of appeal from the judgment the appellant sought to review the order of July twenty-seventh, requiring the defendant to serve a further bill of particulars, and the order of November 7, 1898, striking out the amended answer of the defendant for failure to serve the bill of particulars, and the order of December 1, 1898,
APP. Div.-VOL. XXXVIII. 43
FIRST DEPARTMENT, MARCH TERM, 1899.
awarding the plaintiffs judgment upon such order so striking out said answer as aforesaid. It appears that the order of November seventh, striking out the amended answer of the defendant, and the order of December first, awarding to the plaintiffs judgment upon the order striking out the said answer, were reversed by this court upon an appeal from such orders. Those orders having been reversed, the foundation of this judgment is gone and the judgment so appealed from must, therefore, be reversed.
The plaintiffs on this appeal also seek to review the order granting the motion for a bill of particulars. That order, however, cannot be reviewed on the appeal from the judgment. Section 1316 of the Code of Civil Procedure provides that “ An appeal taken from a final judgment brings up for review
an intermediate order, which is specified in the notice of appeal, and necessarily affects the final judgment.” An order for a bill of particulars is not such an order. A bill of particulars so required is simply an extension of the pleading in relation to which it is ordered and has no relation to the tinal judgment. It does not “necessarily affect” the judgment, but has relation to preparing the issues to be presented to the court upon the trial. After a trial of the issues it would not be material whether a bill of particulars had or had not been ordered, and the court would not be justified in reversing a judgment entered on a verdict or on the decision of the Special Term or the report of a referee, because a bill of particulars had been improperly required or refused. It is only orders which, if reversed, would take away the foundation of the judgment or make the trial or the judgment entered in valid or without support that can be reviewed on an appeal from the judgment. There is a plain distinction between orders that thus directly affect the judgment, and orders which relate to the pleadings or procedure in the action. An order to amend a pleading, or for a bill of particulars not necessarily affecting the final judgment, is not included within the orders that can be reviewed upon an appeal from the final judgment.
The judgment should be reversed, with costs to appellant to abide the event.
Van Brunt, P.J., BARRETT, Rumsey and O'Brien, JJ., concurred.
Judgment reversed, with costs to appellant to abide event.
FIRST DEPARTMENT, MARCH TERM, 1899.
38 339 159a 535
In the Matter of the Application of CHARLES Whann and FRED
ERICK S. SCHLESINGER, Appellants, for a Peremptory Writ of
New York, Respondent.
York — New York city registered stock cannot be issued in place thereof.
were valid outstanding obligations of that village when, on January 1, 1898,
of the registration with a reference to that section. The fact that section 172 is, in the main, a re-enactment of section 138 of the
Consolidation Act (Laws of 1882, chap. 410) and of section 1 of chapter 199 of the Laws of 1880, under which no right existed to surrender the bonds referred to therein and to obtain therefor original city stock, and that in enacting sectior 172 the Legislature inserted the provision, not contained in the original act, that the comptroller shall “issue” registered stock or bonds in place of the coupon bonds, does not evince an intent on the part of the Legislature to confer any additional rights on the holders of such coupon bonds, such as exemption from taxation except for State purposes, conferred on the bonds of the city of New York, or to deprive the city of New York of the right to contest the validity of the coupon bonds, should they be found to be invalid.
APPEAL by the petitioners, Charles Whann and another, from an order of the Supreme Court, made at the New York Special Term and entered in the office of the clerk of the county of New York on the 20th day of February, 1899, denying their motion for a peremptory writ of mandamus directed to Bird S. Coler, as comptroller of the city of New York, commanding him to issue to the petitioners registered stock of the city of New York in exchange for bonds issued by the late village of Richmond Hill.
J. H. Caldwell, for the appellants.
Order affirmed, with costs, on the opinion of Scott, J., in the court below.