Gerrity Co. v. Padalino

51 Misc. 2d 928, 273 N.Y.S.2d 994, 3 U.C.C. Rep. Serv. (West) 989, 1966 N.Y. Misc. LEXIS 1430

Opinion

Harold E. Koreman, J.

In an action to recover on a promissory note, plaintiff moves for an order dismissing the defenses contained in the answer on the ground that a defense is not stated therein. (CPLR 3211, subd. [b].) Defendants, the maker and indorser, assert that the note was not presented for payment, was not protested for nonpayment, and no notice of protest or nonpayment was given to the indorser. Defendants also contend that they are not responsible for payment of reasonable attorney’s fees, and that the note does not contain any provision for payment of such fees.

The note attached to the complaint states on its face, 1 ‘ protest waived ”. A waiver of protest is also a waiver of presentment and of notice of dishonor, and where the waiver is embodied in the instrument itself, it is binding upon all parties. (See Uniform Commercial Code, § 3-511, subds. [5], [6].) The note also bears on its face the words “plus costs and reasonable attorney’s fees ”.

Accordingly, the motion is granted and the defenses are stricken.