PAHQUIOQUE BANK a. MARTIN

PAHQUIOQUE BANK a. MARTIN. Supreme Court, First District; Special Term, November, 1860. Protest op Hote.—Complaint against Indorser. Notice to an indorser of a note of non-payment thereof, is not sufficient to charge him. He must have notice of presentment or demand and non-payment. In a complaint against an indorser, an allegation that the note was duly presented and payment demanded, but it was not paid, and due notice of nonpayment was given, &c., is insufficient on demurrer. Demurrer to complaint. The contents of the complaint sufficiently appear in the opinion. [MAJORITY — Bonney, J.] Bonney, J. This action is against defendant Martin as indorser of a promissory note. The complaint, to which the defendant has demurred, states, among other things, that the note was duly presented for payment, and payment thereof demanded, but it was not paid; that the note was thereupon duly protested for non-payment, “ and due notice of such non-payment was given to the defendants,” Martin and others. Notice of non-payment only, is, neither directly nor by implication, notice of presentment or demand, and consequently is not notice of the dishonor of the note within a proper meaning of the word. To make an indorser liable, he must be notified in proper time that the bill or note which he has indorsed has been dishonored. (Cook a. Litchfield, 5 Sandf., 330; S. C., 5 Seld., 279; Coddington a. Davis, 1 Comst., 186; Edw. on Bills, 593, and cases cited.) This statement in the complaint is, in my judgment, defective. The other allegations to which objection is made are, in my opinion, sufficient. Judgment for defendant Martin.