#### Edwin E. Plant, plaintiff, *vs.*Spencer D. Schuyler and James Plant, defendants.

1. Where a negotiable note is made and passed before maturity, an allegation, in an answer, that the note was not to be negotiated, and that the defendant was to have the right to return the consideration, is frivolous.

2. Allegations in an answer, that the plaintiff is not the *lona fiio*owner and holder of the note sued on; that he did not receive the same in the usual course of business, nor advance any new or full consideration therefor; that another person is the party in interest, &c.; are all frivolous.

3. Where the answer does not "deny the facts constituting ownership in the plaintiff, but states only the conclusions of the defendant, this is bad pleading.

4. -The allegation that the plaintiff is not the owner and “holder of the note, and that A. B. is,” creates no issue, and amounts to a mere traverse, not recognized by our practice.

6. Where it is not denied, in the answer, that the plaintiff advanced a consideration for the note, these denials, or allegations of conclusions, are frivolous.

*2726. A denial, following such allegations in an answer, “ of all matters inconsistent with” the answer, is merely a reaffirmance, or repetition of the matters previously pleaded.

(Before McCunn, J. at special term,

December —, 1867.)

Motion for judgment, on the pleadings.

The complaint alleged that the defendant Schuyler, on or about the 16th day of March, 1867, at the city of Yew York, by his promissory note in writing, dated on that day, for value received, promised to pay to the defendant, James Plant, or order, the sum of $500 on the 15th day of July next ensuing; and Plant afterwards, and before the same became due, for value received,. indorsed the said note, and the same was therefore, for value, transferred to the plaintiff, who is now the lawful owner and holder thereof. That payment of said note was duly demanded at maturity, and the same was thereupon duly protested for non-payment, and notice thereof duly given to the indorser, the expense of which protest was $1.34. That the said defendants have never paid said note, nor any part thereof, but are now justly indebted to the plaintiff therefor. Wherefore the plaintiff demanded judgment against the defendants, for the said sum of $500, with interest from the 18th day of July, 1867, besides the costs of this action, and said $1.34, notary’s fees.

The defendant Schuyler, in his answer, alleged that the said James Plant, the payee of the note, at the time of the same, was justly indebted to one George S. Stringfield, in the sum of $200, and being justly indebted therefor, promised to pay the same on request; and that, though often requested, the said James Plant never paid the same nor any"part thereof; and that before the commencement of this action the said Stringfield duly sold, assigned and transferred the said claim or demand to this defendant, and that he was the owner and holder thereof. And the defendant alleged, upon information and belief, that the *273plaintiff was not a *Iona fide*holder of said note, that he did not receive the same in the usual course of business, nor advance any new or full consideration therefor, and received the same with full knowledge of the defendant’s set-off to the same, and for the purpose of depriving the defendant thereof; and that he is not the real party in interest in said matter, but prosecutes the same for the benefit of the said James Plant.

Second. The defendant further alleged that at the time of the making of said note, the said payee, James Plant, and this defendant, were stockholders in the American Bolt and Rivet Company, a cprporation organized under the laws of the state of Hew York, and the said James Plant at the date of said note executed to this defendant a nominal transfer of his said stock, for the purpose of enabling this defendant to exercise a greater control and influence in the said corporation for the use and benefit of this defendant and the said James Plant, stockholder, as aforesaid; and the said note mentioned and described in the complaint was executed and delivered to the said James Plant as a memorandum note, and not for the purpose of negotiating the same; by the said James Plant, and it was expressly understood and agreed that the defendant was to have the right and privilege of returning the said stock to Plant, and which he is ready and willing to do, upon the return of the said note, pursuant to the said agreement and understanding; and the defendant alleged, upon information and belief, that the plaintiff was not a *bona fide*holder of the said note, that he did not take the same in the ordinary course of business, nor advance any new or full consideration therefor, and that he received the same with knowledge of the circumstances under which the same was made as aforesaid; and that he is not in fact the owner of said note, but is prosecuting the same for the benefit of the said James Plant; and the de*274fendant denied each and every allegation contained in the said complaint,, inconsistent with the foregoing answer, and demanded judgment that the said complaint be dismissed, with costs.

McCunn, J.

The answer does not deny the making of the note for value, its terms, its indorsement and delivery to the plaintiff that it became due, &c.

In the second part of the answer, for the purpose, as is supposed of showing a want of consideration, the defend- ' ant has pleaded a number *of “*understandings ” about stock, &c. but what connection they had with the making and delivery of the note does not appear. Indeed, if any thing can be inferred from the pleaded matter, it is that the note was given for the assignment of stock which was *beneficial to the defendant Schuyler,*and which therefore constituted a consideration sufficient to hold the note.

The allegations in the answer that the note was not to be negotiated, and that the defendant should have the right of returning said stock, &c. are frivolous, because the terms of the note are admitted in the answer, from which the court can see it was negotiable; and no agreement that James Plant should take a re-assignment of said stock, in payment of the note, is alleged. Moreover, the pleadings show that the note was payable in money, and it is clearthat all such agreements or understandings, if made, would be void. *(Edwards on Bills,*147.)

Again, there was no tender or offer to pay the note by a re-assignment of the stock or otherwise; on the contrary, it appears that the defendant refused to pay the same in any manner; The allegations in the answer, on information- and belief, “ that the plaintiff is not the *bona fide*owner and holder of said note; that he did not receive the same. in. the usual course of business, nor advanpp any new or *275full consideration therefor; that J ames Plant is the party in interest,” &e. are all frivolous.

The answer does not deny the facts constituting ownership in the plaintiff. The conclusions only of the defendant are pleaded; this is bad pleading. *(Russell*v. *Clapp, 4 How.*347.)

The allegation that the plaintiff is not the owner and “holder of the note, and that A. B. is,” creates no issue, and amounts to a mere traverse not recognized by our practice. *(Brown*v. *Ryckman,*12 *How.*313. *Adams*v. *Holley, Id.*326. *Seeley*v. *Engell,*17 *Barb.*530.) And it is not denied in the answer that, the plaintiff advanced a consideration for the note; therefore these denials or allegations of conclusions are frivolous. *(Witherspoon*v. *Van Dolar,*15 *How.*266. *Holstein*v. *Rice, Id.*1. *Tompkins*v. *Acer,*10 *id.*309.)

It seems to me that the denial following such allegations in the answer “ of all matters inconsistent with the answer,” is merely a re-affirmance, or repetition of the matters previously pleaded.

I hold, therefore, that the matters pleaded are entirely insufficient to constitute a set-off to the note. There is not a single fact pleaded, showing that James Plant ever became indebted to Stringfield.- The mere statement of the conclusion that Plant so became indebted is insufficient. *(Van Schaick*v. *Winne,*16 *Barb.*95. *Myers*v. *Machado,*14 *How.*149.)

Again, it does not appear that the assignment to Schuyler was made before the note to the plaintiff, and therefore • it cannot be allowed as a set-off to the note. (2 *R. S.*450, 451, *3d*ed.)

Judgment must be ordered, on the pleadings, for the plaintiff.