Price v. McClave

5 Duer 670

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

Opinion

Duer, J.,

held the proposition first above stated, on the authority 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.