Price v. McClare

3 Abb. Pr. 253

• Court: The Superior Court of New York City
• Decided: May 15, 1856
• Status: Published

Opinion

Duer, J.

The demurrers are well taken. The complaint is bad, in omitting to aver that the note was made by McClare, and that it was made by Mm in the name of McClare & Co.

■ It is also' bad in not averring that the note had been endorsed by the defendants McLean and Cain. The complaint in its actual form cannot be sustained without overruling the former decisions of the court upon the point. (Lord v. Cheeseborough, 4 Sandf., 696; Adler a. Bloomingdale, 1 Duer, 601. And see Bank of Geneva a. 8 How. Pr. R., 51).

The averment in the complaint that the note was protested, is not an averment, nor is it equivalent to an averment that it had been duly presented for payment to the maker, and that payment had been refused.

* For, without any proof of those facts, the averment would be sustained by merely proving the fact of a protest, however irregularly or improperly made. It is very true that it has been held that notice of protest is valid as a notice of dishonor; but it by no means follows that an averment of protestis sufficient, in a complaint, in which all the facts constituting the cause of action are required to be set forth.

Demurrer allowed, with the usual leave to plaintiff to amend within ten days upon payment of costs.

Compare Woodbury a. Sackrider, 2 Ante, 402.