Edgerton v. Smith

3 Duer 614

• Court: The Superior Court of New York City
• Decided: February 9, 1854
• Status: Published

Opinion

Motion- on the part of the plaintiff to strike out the first section of the answer as irrelevant. The complaint was against the defendant, as endorser of a promissory note, and averred that due notice that the note had been presented for payment and that payment had been refused, had been given to the defendant. The part of the answer proposed to be stricken out merely denied that such notice had been received by the defendant. Held, that this was plainly irrelevant, as containing no denial of any material allegation in the complaint, and tendering an immaterial issue. It was not denied that due notice of the dishonor of the note had been given, and the fact that the notice so given had not been received by the defendant, if proved, would be no bar to a recovery. Motion granted, with costs.