Price v. McClave — 12 N.Y. Super. Ct. 670

Majority

p. 670

Price v. McClave.

Headnote

A complaint upon a promissory note against maker and endorser, is not sufficient, under section 162 of the Code, if it fails to aver that the maker made the note, and that the -endorser endorsed it, although the complaint contains a copy of the note and of its endorsements.^[1] An averment that a note was -protested, is not equivalent to an averment that it was duly presented for • .payment to the maker, and payment was refused. (3d Abbott, 253.)

At Special Teem,

May, 1856.

This action came-before the court on a demurrer to the complaint.

G. Carpenter, for plaintiff.

Mr. Mitchell, for defendants.

held the proposition first above stated, on the author

p. 671

ity of Lord v. Chesebrough, (4 Sand. 696,) and Alder v. Bloomingdale, ( 1 Duer, 601 ,) and also referred to Bank of Geneva, (8 How. Pr. R. 51.)

He held the second proposition on the ground, that although notice of protest is valid as a notice of dishonor,, it by no means follows that an averment of protest is a sufficient allegation, of a due presentment ■ of the note to the maker and of his* refusal to pay it, in a complaint, in which ¿11 the facts constituting the cause of action are required to be stated. The fact of a protest, however irregularly or improperly made, would prove an. averment of mere actual protest.

On appeal to the General Term, the order sustaining the demurrer was affirmed.