Spear agt. Downing.

This brings us to the question principally argued before us, to wit: whether the complaint on its face contains the elements of a good cause of action.

This depends mainly upon the construction to be given. to § 162 of the Code, which provides that " in an action or defence founded upon an instrument for the payment of money only, it shall be sufficient for a party to give a copy of the instrument, and to state that there is due him thereon from the adverse party a specified sum which he claims."

The instrument in question comes within the literal description of the kind of instrument mentioned in this section, for it is an instrument for the payment of money only. But obviously something more is necessary.

It would seem that it should be an instrument on its face apparently valid; certainly one not clearly void; for then the instrument would nullify itself.

This instrument is not a promissory note, because it was not payable at all events. The death of Alice Leuart within a month after the date of the instrument, would have defeated any recovery. (Prindle agt. Carruthers, 15 N. Y. R., 430.) In the language of the court of appeals, "it is necessary, therefore, that the promise should from the complaint appear to have been made upon consideration. (Ibid., p. 430.)

There is no allegation of consideration in the complaint independent of that, if any, which appears upon the face of the instrument. That consideration, as alleged, is "for her attention [paid or given] to my son John Stanton Marshall."

To make defendants liable, this attention must have been bestowed either in pursuance of a request previously made, or must have been in its nature beneficial to the party promising, so as to operate as a reasonable and probable consideration for the promise. (Ingraham agt. Gilbert, 20 Barb., 152; Ehle agt. Judson, 24 Wend., 97, 98; Goulding agt. Davidson, 28 Barb., 438; Wilson agt. Baptist Educa

Spear agt. Downing.

tion Society, 10 Barb., 308; Gould's Pleadings, 176, § 15.) Here, certainly, no request whatever is averred, and I think not necessarily or fairly implied. The instrument is quite as consistent with the idea that the services were performed without any request at all, or at the request of John Stanton Marshall, as at the request of the testator.

It seems to me this should not be left to inference. The request is a pre-requisite to the liability, and I think the pleader should aver it. While pleadings are not to be condemned for want of form, and are to be liberally construed, I think substantial defects are not to be disregarded. We are not to uphold a pleading simply because a state of facts might exist against what is probable, which would justify an action.

The same considerations apply to the other alternative. I do not see that the services are presumed to have been beneficial to Benjamin Marshall. They were rendered to another person-his son, not alleged, not presumed to have been a minor, or in a situation to make it obligatory upon the father to support him.

If every fact fairly inferable from the terms of this writing were spread out on the face of this complaint in the shape of distinct and positive allegations, the complaint would not have stated a good cause of action. If Benjamin Marshall had declared orally in so many words what he has thus expressed in writing, I think no one would have supposed he rendered himself liable to an action.

We ought not, I think, to extend the application of § 162 beyond the probable intent of the legislature, or to give a party the benefit of a cause of action by this indirect mode. of averment, when he would not have had it, if he had put his allegations in proper form and in express terms. Some rules of pleading in the confusion and anarchy introduced by the Code must still be observed; and one of these is, or ought to be, that where a consideration is not implied, or a request" is essential to the defendant's liability, it is the VOL. XXII.

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Spear agt. Downing.

gist of the action and must be specially averred." (Gould's Pleadings, 176.)

The case of Prindle agt. Carruthers, (15 N. Y. R., 425,) is not in conflict with the views here expressed. There, the consideration" for value received," appeared from the face of the instrument, and was, moreover, held to have been argumentatively inferable from the extrinsic allegation that the defendant made his contract in writing. (14 N. Y. R., 431.)

It is suggested that the rule that where a contract is susceptible of a two-fold construction, one of which will make it valid and the other void, the legal presumption is in favor of the validity of the contract, may help the plaintiff in this case. The rule turns rather upon a question of evidence or presumption 'than of pleading. If the question here turned upon the nature of the services rendered, the rule would apply. But it turns upon the question for whom or at whose request were the services rendered; and the absence of any allegation on this point was never, that I am aware, supposed to be aided or cured by this rule.

It is further suggested that the rule of construing a pleading under the Code, contrary to what it was before, is to construe it most favorably to the pleader. I do not admit the existence of the rule to this unqualified extent. It may be admissible on questions of form, but it cannot be applicable in regard to the fundamental requisites of a cause of action.

The order of the special term should be reversed, with costs, and judgment rendered in favor of the defendants on the demurrer, with leave to the plaintiff to amend her complaint on payment of costs.

GOULD, J., concurred.

PECKHAM, J., dissented.

Squires agt. Brown.

NEW YORK SUPERIOR COURT.

ASAHEL P. SQUIRES, respondent agt. EDGAR M. BROWN and others, appellants.

In any case a judgment against a corporation is prima facie evidence in an action under the statute to charge the stockholders or trustees personally, that the debt exists or of the indebtedness, and the circumstance that recovery of judgment must be had before suit brought, only makes the judgment serve the further purpose of showing that the condition has been complied with.

Under the statute, (Laws of 1848, ch. 40, § 9, p. 56,) a copy of the certificate of incorporation filed in pursuance of the act, certified by the county clerk, &c., is presumptive legal evidence of the incorporation, and of the appointment of the trustees.

A trustee of a corporation organized under this act may resign his trusteeship. If he do resign he does not become liable for the debts of the company on the subsequent default or neglect of the remaining trustees to make and file the annual certificate required by the act. On his resignation his powers and duties as trustee cease.

Where individuals with a view to the formation of a corporation under the act, are induced by false representations to consent, and as a step thereto, sign and file a certificate in the office of the county clerk, but discover the falsehood of the representations, and abandon the enterprise of forming the corporation before any stock is subscribed, and without filing any certificate in the office of the secretary of state, these facts will exempt them from liability for debts contracted in the name of the company, on a subsequent default to make and file the annual certificate required by the act under which they attempted an incorporation.

Heard General Term, November, 1860.

Before BosWORTH, Ch. J., WOODRUFF and WHITE, J. J. Decided April the 20th, 1861.

IN 1855, a corporation was organized by Walker and others, for the manufacture of plate glass, called "The National Plate Glass Works." In 1856 its projectors proposed to reorganize it and form a new corporation by the name of "The National Plate Glass Company." The plaintiff claims to be a creditor of the last named corporation, and brings this action against the defendants Brown and Dusenbury, on the ground that they were trustees thereof,

Squires agt. Brown.

The defendants are proceeded against under § 12 of the act passed February 17th, 1848, relative to the formation of corporations for manufacturing and other purposes, for an omission to publish within twenty days from the first day of January, a statement of the amount of its capital, as required by such section.

Upon the trial the plaintiff offered in evidence a certificate of incorporation filed in the clerk's office in the city of New York, in April, 1856, but gave no evidence that a certificate was filed in the office of the secretary of state. Brown and Dusenbury are named as trustees in the articles filed in the New York office.

The plaintiff offered in evidence a record of a judgment in his favor against "The National Plate Glass Company," in the supreme court, on the 9th day of April, 1858, for the same cause of action which is set out in the complaint in this action. The process in the action being served upon the treasurer. The counsel for the defendants objected to the receipt of such judgment roll as evidence against them. The court overruled the objection and decided to receive the judgment roll as evidence. Counsel for the defendants excepted.

The plaintiff also offered in evidence an execution issued upon such judgment to the sheriff of the city and county of New York, with the return of said sheriff thereon indorsed "nulla bona," which execution and return were issued and made before the commencement of this action.

The counsel for said defendants objected to the receipt of such execution and return as evidence.

The court decided to admit the same in evidence. The counsel for said defendants excepted.

The plaintiff introduced other evidence tending to show the existence of a claim in his favor for meats and provisions furnished to the workmen of the company, and offered in evidence a due bill for the amount of his claim signed "National Plate Glass Co., J. N. Richmond, Superintendent."