MARIA P. BOSTWICK vs. THE DRY GOODS BANK.

Though immaterial allegations be inserted in a complaint, that is not a cause

of demurrer; and they cannot be stricken out on a motion for judgment for frivolousness of demurrer.

Redundant or impertinent matter, inserted in a complaint, do not furnish sufficient ground for a demurrer.

A complaint stated, in effect, that the plaintiff, being the owner of a certain United States bond, left it with B. & H., as her agents, to convert the same into cash for her; that B. & H. employed the defendant to accomplish that object; that the defendant sold such bond, or converted it into money, and instead of remitting the proceeds to the plaintiff, or her agents, B. & H., converted the same to its own use, by placing the same to the credit of B. & H. on their account: Held, on demurrer, that the complaint contained a good cause of action.

Held, also, that such diversion of the bond, or its proceeds, to the purpose of a security, or application upon B. & H.'s antecedent debt to the defendant, without the consent or authority of the plaintiff, or any fresh advances made thereon, did not constitute the defendant a holder in good faith and for value, as against the plaintiff.

Held, further, that even a person to whom B. & H. had, under such circumstances, voluntarily delivered the bond, upon an antecedent debt of theirs, could not hold it, as against the true owner.

MOT

OTION by the plaintiff for judgment, for frivolousness of demurrer to complaint.

A. &. S. Loomis, for the motion.

Wm. Sharp, opposed.

HARDIN, J. The plaintiff, by her complaint, seeks to recover of the defendant money equivalent to the value of a United States bond which she left with Bush & Hely, to be sent to New York and sold, and which was by them, as her agents, sent to the defendant and sold, and the value, $585, received by it, but not paid over to Bush & Hely, nor transmitted to them for the plaintiff, and not transmitted to the plaintiff, but kept by the defendant.

The demurrer is on the general ground that the comVOL. LXVII.

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Bostwick v. Dry Goods Bank.

plaint does not contain facts sufficient to constitute a cause of action.

The learned counsel for the defendant insisted, on the argument, that immaterial allegations are found in the complaint. Assuming that he is right, that is not a cause for demurrer; and they cannot be stricken out, upon this motion. Redundant or impertinent matter, inserted in a complaint, do not furnish sufficient ground for a demurrer.

It was said in People v. Mayor &c. of New York, (17 How. Pr., 56,) that "under the Code, the plaintiff may present, in his complaint, a mass of heterogeneous facts, and a volume of unmeaning words, and any number of prayers for the most various and inconsistent relief, and none of these defects can be reached by demurrer, provided the complaint contains, no matter in what state of disorganization, the elementary constituents of a good cause of action." (See opinion of SUTHERLAND, J., p. 62; 1 Duer, 242; 11 How., 218.)

The complaint in this case states, in clear terms, that the plaintiff was the owner of the United States bond, and that the plaintiff "caused to be left with Bush & Hely," the bond "to be by them as agents or bailees for her, sent to New York and sold and converted into money for her;" and it then alleges that the defendant was the correspondent of Bush & Hely; that the defendant received said bond from B. & H. for collection, about the 9th of November, 1875, and immediately sold it, or converted it into money, and instead of remitting the sum it got for it to the plaintiff or her agents, Bush & Healy, the defendant "converted the same to its own use by giving said Bush and Hely credit therefor on their account." It thus appears that the plaintiff was the owner of the bond; that she left it with Bush & Hely as her agents, to convert into cash for her; that they undertook such agency; that in complying with the plaintiff's request and authority, they employed the

Bostwick v. Dry Goods Bank.

defendant; that the defendant had the property of the plaintiff, or its proceeds, and has not paid, lent or advanced anything upon it, or for the plaintiff, or at her request; and that the defendant "gave Bush & Hely credit therefor on their account."

There is nothing to show a fresh advance to Bush & Hely for the bond or its proceeds, and no consent or authority from the plaintiff is shown, to justify the application of it or its proceeds upon the account of Bush & Hely.

The allegation of the complaint that "by giving said Bush & Hely credit therefor on their account” must be held to mean that the proceeds were placed to the credit of B. & H.; and if not paid over, or a fresh advance made, the plaintiff would be entitled to have and hold the specific bond, if kept by the defendant, or its proceeds, if converted or kept by the defendant. The same is true if the defendant applied, or undertook to apply, the bond or its proceeds upon "their account" against Bush & Hely.

The bond thus diverted, or the proceeds diverted, to the purpose of a security or application upon Bush & Hely's antecedent debt to the defendant, would not constitute the defendant a holder in good faith and for value, as against the plaintiff. (6 N. Y., 144. 26 id., 450. 49 id., 286, 291. 31 id., 509. Turner v. Treadway, 53 id., 650.)

Even a person to whom Bush & Hely voluntarily delivered the bond upon an antecedent debt of their's could not hold against the owner. (58 N. Y., 73.)

But the rule is now established that a bona fide holder for value, who has become such relying upon the apparent title or ownership of commercial or other property, to which is attached a power of sale and the evidence of title, acquires a good title to the extent of such fresh advances and fresh indebtedness incurred upon the strength of the apparent title, (McNeil v. Tenth Na

Hopkins v. Ward.

tional Bank 55 Barb., 59, as modified by Court of Appeals, 46 N. Y., 325; 49 id., 289; 11 Wall., 378; 48 N. Y., 586; 40 id., 314; 43 How., 360.)

The allegations that the bond was delivered to Bush & Hely, that they were then unsound, and that they failed and assigned on the 13th of November, are not material to the questions above stated; and the absence of an averment that the defendant knew of such insolvency, need not be considered, here.

We have thus reached the conclusion that the complaint contains a good cause of action as stated.

There was no affidavit of merits produced upon the argument of this motion. Indeed, the defendant's counsel in effect stated that the complaint contained the facts upon which the defendant was willing to rest the question of its liability. The motion must therefore be granted, and judgment ordered for the plaintiff, with costs of the action, and $10 costs of this motion.

Judgment for plaintiff.

[AT CHAMBERS, LITTLE FALLS, February, 1876. Hardin, Justice.]

HOPKINS vs. WARD.

A new promise is sufficient to take a debt away from the effect of an antecedent discharge in bankruptcy.

A complaint, after setting out a complete cause of action upon a promissory note, stated, as a second cause of action, the making of a promissory note to the plaintiff, by the defendant, dated March 20, 1871, for $300, for money loaned, payable sixty days after date, with interest, on which there was justly due, on the 1st of June, 1875, the sum of $300 and interest, “less payments;" that in consideration thereof, the defendant, on that day, unconditionally promised the plaintiff to pay him the said sum of $300, less a payment made May 13, 1872; and alleged as a breach, the non-payment of the balance of said amount. The defendant's answer contained no denial of the allegations of the complaint, but set up his discharge in bankruptcy,

Hopkins v. Ward.

granted Dec. 1, 1874. Held, that the allegations of the complaint, being material to the plaintiff's cause of action, and not denied by the answer, they must be taken as true.

Held, also, that the new promise, set forth in the complaint and made the foundation of the plaintiff's right to recover, being stated, and proved, to have been made after the defendant was discharged in bankruptcy, the right of recovery thereon was made out.

A promise to pay a debt barred by a certificate of discharge in bankruptcy becomes a new contract, and may be stated as the foundation of the action.

MOT

OTION for a new trial, on the minutes, after a trial before the court and a jury.

After proof, by the plaintiff, of the balance remaining unpaid upon the account set out in the complaint, and by the defendant, of his discharge in bankruptcy, the court, upon the plaintiff's motion, directed a verdict for the plaintiff for said balance, $239.94, April 26, 1876. . The defendant claimed to have the burden of proof, and the claim was allowed to him.

After the verdict for the plaintiff was directed, the defendant made a motion for a new trial, upon the minutes. After argument of that motion, the court reserved its decision.

Chas. J. Everett, for the plaintiff.

E. E. Sheldon, for the defendant.

HARDIN, J. The complaint sets out a complete cause of action, upon a promissory note, and gives a copy of the note. The complaint then, secondly, states that in June, 1875, the plaintiff was the owner and holder of a promissory note, dated March 20, 1871, for $300, made and executed by the defendant, "the consideration of which was $300 loaned and advanced by said plaintiff to said defendant at that time, and by which the said defendant promised to pay, sixty days after date, the said sum of $300 and interest, on which there was due and owing, on the said 1st day of June, 1875, the sum of