John B. Owens, Appellant, v. Joseph E. Blackburn, Respondent, Impleaded with Elmer Dover, Defendant. (Action No. 1.)

John B. Owens, Appellant, v. Joseph E. Blackburn, Respondent, Impleaded with Elmer Dover, Defendant. (Action No. 1.) First Department, April 3, 1914. Bills and. notes — non-negotiable instrument — presumption as to consideration — effect of words “ value received ” — pleading — suit of one maker against other makers for contribution — complaint stating cause of action. An instrument in writing by which the makers state that “ Four months after date we or either of us promise to pay ” to a certain bank a certain sum of money “value received, payable at said Bank with interest at 6 per cent,” is non-negotiable, not being made payable to bearer or to order. There would be no presumption of a consideration for such an instrument but for the fact that the words “ value received ” constitute an acknowledgment that the instrument was issued for a sufficient consideration, and that the consideration was received. Where one maker suing the other makers for contribution alleges that he was compelled to pay the note, and has paid the same in full, with interest, and has demanded contribution from the defendants, it is unnecessary that he allege that neither of the defendants paid the note, for that is fairly implied. The makers were liable to the payee, both jointly and severally; but presumptively, as between themselves, them liability was joint, and in equity they must bear the burden equally. Eor is it incumbent on the plaintiff, under the circumstances, to allege an agreement for contribution, such obligation being implied and enforced by courts of equity. Appeal by the plaintiff, John B. Owens, from an interlocutory judgment of the Supreme Court in favor of the respondent, entered in the office of the clerk of the county of New York on the 14th day of November, 1913, sustaining a demurrer interposed by the defendant Blackburn to the first cause of action set forth in the complaint on the ground that the facts alleged are insufficient to constitute a cause of action. Cornelius W. Wickersham, for the appellant. Herman Kahn, for the respondent. [MAJORITY — Laughlin, J.:] Laughlin, J.: The plaintiff’s first cause of action is on an instrument in writing which is set forth in the complaint as follows, viz.: “$4192.50 Zanesville, Ohio, February 12, 1907. “Four months after date we or either of us promise to pay to the Old Citizens’ National Bank of Zanesville, Ohio, Four thousand one hundred ninety-two and 50/100 Dollars, value received, payable at said Bank with interest at 6 per cent per annum. “No. 17319. Due June 12. J. E. BLACKBURN “ ELMER DOVER “ J. B. OWENS.” The note not being payable to bearer or order is non-negotiable (Neg. Inst. Law [G-en. Laws, chap. 50; Laws of 1897, chap. 612], § 20; now Neg. Inst, Law [Consol, Laws, chap. 38; Laws of 1909, chap. 43], § 20; Kerr v. Smith, No. 1, 156 App. Div. 807; National Citizens’ Bank v. Toplitz, 178 N. Y. 464), and there would, therefore, he no presumption of consideration; but the recital “value received ” in the body of the note constitutes an admission that the instrument was issued for a sufficient consideration. (Hamilton v. Hamilton, 127 App. Div. 871; Prindle v. Caruthers, 15 N. Y. 425; cited with approval in National Citizens’ Bank v. Toplitz, 178 id. 464.) The cases of Browning, King & Co. v. Terwilliger (144 App. Div. 516) and Czerney v. Haas (Id. 430) and St. Lawrence County Nat. Bank v. Watkins (76 Misc. Rep, 633), which has been reversed (153 App. Div. 551), and Kinsella v. Lockwood (79 Misc. Rep. 619), upon which counsel for respondent relies, are plainly distinguishable, on the ground that in those cases the non-negotiable instrument was not pleaded in hœc verba and the courts were considering allegations to the effect that an instrument or promise was made for a valuable consideration which were deemed in the nature of conclusions of law and not sufficient allegations of the facts; but, manifestly, those authorities have no bearing in a case where the pleading sets forth the instrument which recites an acknowledgment of the receipt of consideration. The promise is both joint and several. All of the makers and each of them, therefore, has admitted the receipt of consideration for the promise. The plaintiff is one of the makers and the defendants are the other two. The plaintiff alleges that he was compelled to pay the note and that he paid it in full with interest, and that he has demanded that each of the defendants contribute to him one-third of the amount paid. There is no merit in the contention that the plaintiff should have alleged that neither of the defendants paid the note. That is fairly to be implied from the allegation that he was compelled to pay it. The three makers were hable to the payee both jointly and severally, but presumptively as between themselves their liability was joint and equity requires that they hear the burden equally and that those who have not paid shall contribute to the plaintiff who has been obliged to pay the entire amount for which all three makers were liable. (Aspinwall v. Sacchi, 57 N. Y. 331; Hard v. Mingle, 141 App. Div. 170; affd., 206 N. Y. 179; Dillenbeck v. Dygert, 97 id. 303; McCready v. Van Antwerp, 24 Hun, 322; Kimball v. Williams, 51 App. Div. 616.) It was not incumbent on the plaintiff, in the circumstances, to allege an agreement for contribution, for that is an obligation implied and enforced by courts of equity. (Aspinwall v. Sacchi, supra; Van Demark v. Van Demark, 13 How. Pr. 372; Hard v. Mingle, supra; McCready v. Van Antwerp, supra.) It follows that the interlocutory judgment should be reversed and the demurrer overruled, -with costs, with leave to respondent to withdraw the demurrer and answer on payment of costs of the demurrer and of the appeal. Ingraham, P. J., McLaughlin, Scott and Hotchkiss, JJ., concurred. Judgment reversed, with costs, and demurrer overruled, with costs, with leave to defendant to withdraw demurrer and to answer on payment of costs.