Storp v. Harbutt

4 E.D. Smith 464

• Court: New York Court of Common Pleas
• Decided: December 15, 1855
• Status: Published

Opinion

By the Court.

Woodruff, J.

Although a defendant does not appear and answer, the plaintiff cannot, in the Marine and District Courts, recover without proving his case. (Code, § 64, sub. 8, § 68.)

The defendant in this action was sued as the endorser of a promissory note, and the plaintiff did not prove, nor attempt, to prove, a demand of the maker, or refusal by him to pay the note at maturity. Without this proof, or proof of a waiver of such demand, or a subsequent promise, or the like equivalent, the defendant could not be charged. Such demand and refusal (unless a demand be waived) is indispensable to fix the endorser. Proof that a notice of protest was served on the defendant does not prove, nor tend to prove, a demand of the maker. Mo cause of action, therefore, was made out against the defendant.

In this respect the case is not one in which the appellate court are called upon to review a finding of fact upon evidence. There is here a total want of evidence; a finding without any evidence; a want of any proof whatever to a point which is vital to the right of recovery.

It is, therefore, unnecessary to consider the other points raised by the notice of appeal.

The judgment must, I think, be reversed.

Judgment reversed.