PRICE a. McCLARE

PRICE a. McCLARE. New York Superior Court; Special Term, May, 1856. Complaint upon Note.—Requisites of. A complaint upon a promissory note against maker and endorser, is not good under section 162 of the Code if it fails to aver that the maker made the note, and that the endorser endorsed it. An averment that a note was protested, is not equivalent to an averment that it was duly presented for payment to the maker and payment was_refused. Demurrer to a complaint. This action was brought by Thomas Price against John McClare, Henry McLean and James Cain.. The complaint stated that the defendants were indebted to the plaintiff upon a promissory note. The, note was set. forth in the complaint. It purported to be signed “John McClare & Co.,” and to be endorsed “ Henry McLean,” “ James Cain.” The complaint then averred that before the note fell due it was passed to the plaintiff for a valuable consideration,—that the whole amount thereof was justly due to him from the defendants,—that when it became due, it was protested for non-payment,—and that due notice of protest was given to McLean and Cain. The defendant McClare, and the defendants McLean and Cain, demurred separately. The question was whether the pleading was good under section 162 of the Code. Mr. Mitchell, for the demurrers. G. Carpenter, opposed. [MAJORITY — Duer, J.] 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.