Hyperlawhypertext legal database Hirschfelder v. Locey Mining & Manufacturing Co. 42 N.Y. St. Rep. 108

← Cases

Hirschfelder v. Locey Mining & Manufacturing Co.

42 N.Y. St. Rep. 108 Court General Term, Decision date 1891-12-17 English

Delivered by Fitzsimons, J.

Contents

Majority

p. 108
Sigmund Hirschfelder, Resp’t, v. The Locey Mining & Manufacturing Co., Impl’d, App’lt.
(City Court of New York,
General Term,
Filed December 17, 1891.)

Headnote

Bills and notes—Pleading.
The complaint herein alleged the making of a draft by the defendant corporation and its acceptance by the other defendant; that it was transferred to plaintiff before maturity, and that it was presented to both defendants and payment refused. Held, that it stated a sufficient cause of action; that the presentation of the draft to the drawer was sufficient notice to it that the drawee had failed to pay.
Appeal from judgment entered on order overruling demurrer to the complaint.
H. Aplingion, for app’lt; S. A. Emanuel, for resp’t.

This is an action upon a thirty-day draft, dated 5th September, 1891, for $150, drawn by the defendant, Locey Mining & Mfg. Co., to the order of

p. 109
delivered to plaintiff That it was presented for payment to both defendants on October 8, 1891, and payment refused.

The defendant, The Locey Mining & Mfg. Co., demurred to the complaint upon the ground “ that it failed to state facts sufficient to constitute a cause of action,” which was overruled as frivolous.

The demurrer admits all the allegations of the complaint; therefore admits that the draft was presented to both defendants, and payment thereof refused by each of them.

The presentation to the demurring defendant of the draft for payment, I think, was sufficient notice to it that the defendant Locey had failed to pay the sum. The law only requires that speedy notice of non-payment by the drawer of a draft shall be given to its accept or, sothat his rights may suffer no detriment by unnecessary delay. Such notice the demurrer admits was given in this case.

I think that the complaint was sufficient and the demurrer properly overruled. The defendant’s plea is purely technical, and should not be encouraged.

Judgment affirmed, with costs.

Van Wyck and McCarthy, JJ., concur.