Chemical National Bank v. Carpentier
New York Supreme Court
Motion to strike out demurrer to complaint as frivolous. This action is against the maker and indorser of a promissory note. The defendant, Carpentier, the last indorser, interposes a demurrer.
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Motion to strike out demurrer to complaint as frivolous. This action is against the maker and indorser of a promissory note. The defendant, Carpentier, the last indorser, interposes a demurrer. The grounds of demurrer are in substance that it is not alleged in the complaint that the plaintiff gave any consideration for the note ; and that it is not alleged that when the note became due the plaintiff presented the same for payment to, or demanded payment thereof from the maker or any person or corporation authorized to pay the same.
1Opinion of the CourtBarrett, 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 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…
2Cases cited6 opinions
- Spellman v. WeiderNew York Supreme Court · 1850
- Woodbury v. SackriderNew York Supreme Court · 1856
- Adams v. SherrillNew York Supreme Court · 1856
- Price v. McClaveThe Superior Court of New York City · 1857
- Ferner & Kraushar v. WilliamsNew York Supreme Court · 1861
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