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Conkling v. Gandall, 1 Abb. Ct. of App. Dec., 423.

16 a negotiable promissory note.

Gandall's indorsement is averred in this complaint, and nothing more affecting him. If this fact had been put in issue and proved on the trial, the plaintiffs would not have been entitled to recover against him. His promise is conditional, and his liability depends upon facts outside of the instrument on which his indorsement is made. An action as against him is founded on something more than an instrument for the payment of money only, even though it should be considered that section 162 of the Code would embrace the case of the makers of a promissory note, whose prom17 ise is contained in the contract evidenced by the instrument itself. Payment of the note must be first properly demanded of the makers, and due notice given to the indorser before any legal liability attaches to the latter. A complaint that does not aver facts, entitling the plaintiff to recover against a party, which do not appear in the instrument set forth, nor are to be implied therefrom, must be defective. If it be necessary as against an indorser (which it unquestionably is) to establish his liability, to prove a demand of payment and notice of dishonor of the note, 18 it is incumbent upon the pleader to state these facts, otherwise the cause of action is defectively stated.


Whatever, therefore, may have been the legislative purpose in the enactment of section 162, it was not intended to include the case of a party whose liability was not absolutely fixed by and expressed in the instrument, but depended for its ever attaching on conditions precedent. Nor do I think in any case, even in that of the makers of a promissory note, the effect of the section is to dispense with the requirements of section 142. A complaint that did not aver the making of a promissory note, of which a copy was given, by the persons sought to be charged as makers, nor show that the plaintiff was the owner and holder, would in my judgment be bad on demurrer. If this were not so, the system of pleading inaugurated by this Code would be immeasurably more vague and indefinite than that which it assumed to supplant.

The judgment should be reversed.

A majority of the judges concurred for reversal.

Chemical National Bank v. Carpentier, 9 Abb. N. C., 301.

INGRAHAM, J., delivered a dissenting opinion, relying on 20 Keteltas v. Myers, 19 N. Y., 231; and Prindle v. Carruthers, 15 id., 425, as sustaining the complaint.

Judgment reversed.



New York Supreme Court, Special Term, 1881.

[Reported in 9 Abb. N. C., 301.]

1. An averment in a complaint that a note, at the instance of the holder was duly presented for payment, and payment thereof demanded and refused," is sufficient to charge an indorser, although it does not allege the place where the note was payable.

2. The demurrer to the complaint held, on a motion to strike it out, not to be absolutely frivolous, although not deemed such that it ought to be sustained after argument.


Motion to strike out demurrer to complaint as frivolous. Action against the maker and indorser of a promissory note. The defendant, Carpentier, the last indorser, demurred on the ground of insufficiency, and argued that it was not alleged in the complaint that the plaintiff gave any consideration for the note; and that it was not alleged that when the note became due · plaintiff presented the same for payment to, or demanded payment thereof from the maker or any person or corporation 2 authorized to pay the same.

BARRETT, J. The only ground of demurrer which seems to amount to anything here is that which attacks the averment as to presentation.

The complaint charges due presentment, but not due presentment to the maker nor at the place where the note was payable according to its tenor. There is a conflict of authority upon this point. Several cases hold it to be necessary to aver presentment to 3 the maker or at the place of payment (Spellman v. Weider, 5 How. Pr., 5; Price v. McClare, 6 Duer, 544; affirming 3 Abb. Pr., 254); others hold an allegation of due presentment to be sufficient within the provision of the Code as to the manner of pleading conditions precedent (Adams v. Sherrill, 14 How. Pr., 297; Woodbury v. Sackrider, 2 Abb. Pr., 405). The latter I think

Cook v. Warren, 88 N. Y., 37.

4 the better view, and if I were hearing the demurrer as an issue of law, my impression is that I should so hold. But I am clearly of opinion that the demurrer is not absolutely frivolous, and consequently that the present motion should be denied with $10 costs to abide the event.


Again trial of demurrer at Special Term.

VAN VORST, J. [after reiterating the rule that the original consideration expressed in the note is enough to entitle the plaintiff as the owner to recover upon it]: In regard to the second ground of demurrer there is an apparent conflict of authority. But I agree with Justice Barrett in the opinion expressed by him when this case was before him at chambers, that the averment in the complaint that the note, at the instance of the holder, "was duly presented for payment, and payment thereof demanded and refused," was sufficient.

I think that such statement in the complaint is a sufficient 6 averment of the performance of the condition precedent necessary to charge an indorser under the provisions of the Code. (Code, §. 533; Femer v. Williams, 37 Barb., 9; s. c., 14 Abb. Pr, 215; Adams v. Sherrill, 14 How. Pr., 297.)

There should be judgment for the plaintiff on the demurrer.


New York Court of Appeals, 1882.

[Reported in 88 N. Y., 37.]

1. A demurrer is not frivolous if any argument is needed to sustain it.* 2. A complaint in an action on a promissory note against the maker, H, and indorsers, W and Y, which, after averring the making, indorsement and delivery, due presentation for payment, and demand and refusal thereof, adds,-whereupon it was "duly protested for non-payment; of all of which the said H had due notice," states no cause of action against the indorsers, as there is no allegation of notice to them; the averment of due protest of a note is not equivalent to an allegation of notice.

3. Where a word used in pleading has different meanings, one. the result of judicial or statutory definition, and the other founded simply upon

* And see Chemical Nat. Bank v. Carpentier, ante p. 78.

Cook v. Warren, 88 N. Y., 37.

an inaccurate popular use, the latter can only be adopted in construing the pleading if it plainly appears from other averments or the whole tenor of the paper that such was the sense in which it was employed.

Action on a promissory note.

The allegations of the complaint were:

"That the defendant, Thomas D. Hammond, on the 8th day of December, in the year 1877, at Mayville, N. Y., made his promissory note in writing, dated that day, whereby, by the name of T. D. Hammond, six months after date, for value received, he promised to pay to W. P. Whiteside, or order, six hundred dollars at the banking office of Gifford & Co., with interest, and that the same was duly indorsed by the said defendants, Whiteside and Warren, and that said Hammond then and 2 there delivered the same to the said plaintiff.

"That when the said note became due, the same was duly presented at said banking office, the place where the same was made payable, for payment, and payment thereof then and there duly demanded, which was refused, whereupon the said note was then and there duly protested for non-payment; of all of which the said Hammond had due notice."

The defendants, Whiteside and Warren, the indorsers, 3 demurred on the ground that the complaint did not state facts sufficient to constitute a cause of action against them.

The Supreme Court at Special Term granted a motion made by plaintiff for judgment on the demurrer as frivolous, on the ground that, although the complaint did not allege that the indorsers were given notice of the non-payment of the note, the question must be determined by the meaning given to the words "then and there duly protested for non-payment.' That in Coddington v. Davis, 1 N. Y., 189, it (the word protest) was held to "include all those acts which by law are necessary to charge an indorser." The giving of notice to the indorser of presentment and non-payment is one of the acts necessary by law.

The General Term affirmed the judgment, without opinion.




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The Court of Appeals reversed the judgment.

FINCH, J. We do not think this demurrer was frivolous. To justify an order which so determines, or a judgment founded upon such decision, the demurrer must be not merely without adequate reason, but so clearly and plainly without foundation that the defect appears upon mere inspection, and indicates that its interposition was in bad faith. If any argument is required to show that the demurrer is bad, it is not frivolous. (Youngs v. Kent, 46 N. Y., 672; Dixon C. Co. v. N. Y. Steel Works, 57 Barb., 447.) In this case the argument has not even satisfied us that the demurrer was not good. The complaint was on a promissory note, of which Hammond was maker, and Whiteside and Warren were indorsers. The complaint alleges the making of the note, the indorsement thereof, and its delivery by the maker to the plaintiff, its due presentation for payment, demand and refusal thereof, and then adds, "Whereupon the said note was then and there duly protested for non-payment; of all of which the said Hammond had notice." Here there was not only no express averment that notice of protest for non-payment was 7 given to the indorsers, but the averment that such notice was given to the maker tends to exclude the idea of an intention to aver a notice given also to the indorsers. It is claimed that the allegation that the note was "duly protested for non-payment," was itself a sufficient allegation of a notice to the indorsers. The only authority for this doctrine, as applied to a pleading, appears to be a decision at General Term (Woodbury v. Sackrider, 2 Abb. Pr., 402), which was itself founded upon Coddington v. Davis, decided in this court. (1 N. Y., 186.) The question in the latter case was not one of pleading, but upon the construction of a letter waiving protest. Reading the letter in the light of the surrounding circumstances, it was very proper to give a broad and popular signification to its terms. Upon the same principle it is easy also to say that a statement in the notice sent, that the note had been protested for non-payment, was sufficient to include payment duly demanded and refused, since such protest implies the previous demand and refusal. (Youngs v. Lee, 12 N. Y., 554.) But these cases do not settle the rule of pleading, nor directly support the doctrine advanced in the


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