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Chemical National Bank v. Carpentier

9 Abb. N. Cas. 301 Court N. Y. Supreme Court, First Department ; Chambers, English

Delivered by Barrett, J.

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p. 301
CHEMICAL NATIONAL BANK v. CARPENTIER.
N. Y. Supreme Court, First Department ; Chambers,
January, 1881.
Again, Special Term, February, 1881.

Headnote

Pleading Presentation oe Note.—Pleading, when not Frivolous.
An averment in a complaint that a note, at the instance of the bolder, “was duly presented for payment, and payment thereof demanded, and refused,” is sufficient to charge an indorser, although it does not allege that the presentment was to the maker, nor that it was at the place where the note was payable.
The demurrer to the complaint, though subsequently held to be bad on the trial, was held, on a motion td strike it out, not to be absolutely frivolous, although the judge thought it not sustainable.
Motion to strike out demurrer to complaint as frivolous.
This action is against the maker and indorser of a promissory note. The defendant, Carpentier, the last indorser, interposes a demurrer. The grounds of demurrer are in substance that it is not alleged in the complaint that the plaintiff gave any consideration for the note ; and that it is not alleged that when the note became due the plaintiff presented the same for payment to, or demanded payment thereof from the maker
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or any person or corporation authorized to pay the same.
O liarles Jones, for the plaintiff.
Mr. Blanlcman, for the defendant.

The only ground of demurrer which seems to amount to anything here is that which attacks the averment as to presentation.

The complaint charges due presentment, but not due presentment to the maker nor at the place where the note was payable according to its tenor. There is a conflict of authority upon this point. Several cases hold it to be necessary to aver presentment to the maker or at the place of payment (Spellman v. Weider, 5 How. Pr. 5 ; Price v. McClare, 6 Duer, 544 ; affirming 3 Abb. Pr. 254 ); others hold an allegation of due presentment to be sufficient within the provision of the Code as to the manner of pleading conditions precedent (Adams v. Sherrill, 14 How. Pr. 297 ; Woodbury v. Sackrider, 2 Abb. Pr. 405 ). The latter I think the better view, and if I were hearing the demurrer as an issue of law, my impression is that I should so hold. But I am clearly of opinion that the demurrer is not absolutely frivolous, and consequently that the present motion should be denied with $10 costs to abide the event.

Again, trial of demurrer at special term.

[After reiterating the rule that the original consideration expressed in the note is enough to entitle the plaintiff as the owner to recover upon it.] —In regard to the second ground of demurrer there is an apparent conflict of authority. But I agree with Justice Barrett in the opinion expressed by him when this case was before him at chambers, that the averment in the complaint that the note, at the instance of the holder, “was duly presented for payment, and

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payment thereof demanded and refused,” was sufficient.

I think that such statement in the complaint is a sufficient averment of the performance of the condition precedent necessary to charge an indorser under the provisions of the Code (Code, § 533 ; Femer v. Williams, 37 Barb. 9 '; S. C., 14 Abb. Pr. 215 ; Adams v. Sherrill, 14 How. Pr. 297 ).

There should be judgment for the plaintiff on the demurrer, with liberty to the defendant to answer on payment of costs.

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