Jerome v. Stebbins

Cope, J. delivered the opinion of the Court—Baldwin, J. and: Field, C. J. concurring.

This is an action on two promissory notes against the maker and indorser. The defense is by the indorser alone. The notes-are payable on demand, and were executed on the 3d of October,. [458185]7, and indorsed to the plaintiff on the 7th of the same month, but were not presented for payment until the 11th of Hovember, 1858. These facts appear in the complaint, and no excuse is alleged for the delay in demanding payment. The defendant demurred generally for insufficiency, and the demurrer was overruled.

The plaintiff was not entitled to recover upon the facts stated in the complaint. The demand of payment was made more than thirteen months after the indorsements, and by all of the authorities the delay was unreasonable. If there were excusing circumstances, they constituted an essential part of the plaintiff’s case, and should have been alleged in the complaint. The defendant was not required to wait until the trial for a development of the facts relied upon for a recovery. It was the duty of the plaintiff to state these facts in his complaint, and as he failed to do this, the defendant, very properly, interposed a demurrer. The Practice Act provides that the facts constituting the cause of action shall be stated, and it will hardly be contended that this provision can be violated without affecting the Sufficiency of the complaint, and the right of the plaintiff to recover. Evidence in relation to irrelevant and immaterial matters is wholly inadmissible, and all matters not presented in the pleadings must be regarded as irrelevant and immaterial. The exclusion of evidence is a necessary consequence of a failure to allege the facts. Every fact which, if controverted, the plaintiff will be compelled to prove in order to maintain the action, must be stated.

Under the Hew York code, it has been held by the Court of Appeals, of that State, that “ every fact which the plaintiff must prove to enable him to maintain his suit, and which the defendant has the right to controvert, in his answer, must be distinctly stated.” (Allen v. Patterson, 3 Seld. 478.) In Safford v. Drew, (3 Duer, 632,) it was said by the Court that a complaint is sufficient if it avers all the facts which, if controverted, the plaintiff will be bound to prove upon the trial, in order to maintain the action. In Garver v. Fowler, (4 Sand. 665,) it was held that an averment of due notice of the presentment and non-payment of a check was not sustained by evidence of facts excusing notice. The Court, Duer, J. delivering the opinion, said: “ It is one of