Hirschfelder v. Locey Mining & Manufacturing Co.

City of New York Municipal Court

Hirschfelder v. Locey Mining & Manufacturing Co.

17 N.Y.S. 726, 42 N.Y. St. Rep. 108, 1891 N.Y. Misc. LEXIS 772

DecidedDecember 17, 1891

StatusPublished

This text of 17 N.Y.S. 726 (Hirschfelder v. Locey Mining & Manufacturing Co.) is published on Counsel Stack Legal Research, covering City of New York Municipal Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hirschfelder v. Locey Mining & Manufacturing Co., 17 N.Y.S. 726, 42 N.Y. St. Rep. 108, 1891 N.Y. Misc. LEXIS 772 (N.Y. Super. Ct. 1891).

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Opinion

Fitzsimons, J.

This is an action upon a 30-day draft, dated 5th September, 1891, for $150, drawn by the defendant Locey Mining & Manufacturing Company, to the order of B. G. Oppenheim, and duly accepted by the defendant Locey; that before maturity it was delivered to Oppenheim, and, also before maturity, indorsed and delivered to plaintiff; that it was presented for payment to both defendants on October 8, 1891, and payment refused. The defendant the Locey Mining & Manufacturing Company 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 same. The law only requires that speedy notice of non-payment by the acceptor of a draft shall be given to its drawer, so that 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. All concur.

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Fitzsimons, J.

This is an action upon a 30-day draft, dated 5th September, 1891, for $150, drawn by the defendant Locey Mining & Manufacturing Company, to the order of B. G. Oppenheim, and duly accepted by the defendant Locey; that before maturity it was delivered to Oppenheim, and, also before maturity, indorsed and delivered to plaintiff; that it was presented for payment to both defendants on October 8, 1891, and payment refused. The defendant the Locey Mining & Manufacturing Company 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 same. The law only requires that speedy notice of non-payment by the acceptor of a draft shall be given to its drawer, so that 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. All concur.

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Bluebook (online)

17 N.Y.S. 726, 42 N.Y. St. Rep. 108, 1891 N.Y. Misc. LEXIS 772, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hirschfelder-v-locey-mining-manufacturing-co-nynyccityct-1891.