Adams v. Sherrill
New York Supreme Court
The plaintiff moves, under the 247th section of the Code, for judgment against the defendant Walter Doty, the indorser of the note on which the action is brought, on the ground of the frivolousness of his demurrer to the complaint. The complaint is founded on the promissory note of the defendants Sherrill and James Doty, payable to Walter Doty or order at the Fort Edward Bank.
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The plaintiff moves, under the 247th section of the Code, for judgment against the defendant Walter Doty, the indorser of the note on which the action is brought, on the ground of the frivolousness of his demurrer to the complaint. The complaint is founded on the promissory note of the defendants Sherrill and James Doty, payable to Walter Doty or order at the Fort Edward Bank. The complaint alleges the indorsement and transfer of the note by Walter Doty to the plaintiff, and that payment of the note was duly demanded at maturity, and was thereupon duly protested for non-payment, and notice…
1Opinion of the Court
Paige, Justice.
As a copy of the note is not contained in the complaint; no question arises under the last clause of the 162d section of the Code. If, however, a copy of the note had been given, the weight of authority would seem to have required, in the absence of the general averment authorized by the first clause of the 162d section—specific averments of the demand of the note at maturity at the place of payment, and notice to the indorser of such demand, and of its non-payment. (19 Johns. 409; 5 How. Pr. R. 6; 5 Denio, 329; 1 Duer, 602; 8 How. Pr. R. 51; 4 Sand. R. 696; 10 How. Pr. R. 33,…
2Cases cited2 opinions
- Woodworth v. President, Directors, & Co. of the Bank of AmericaNew York Supreme Court · 1821
- Seneca County Bank v. NeassNew York Supreme Court · 1848
3Cited by3 opinions
- Youngs v. PerryAppellate Division of the Supreme Court of the State of New York · 1899
- Demelman v. BrazierMassachusetts Supreme Judicial Court · 1908
- Chemical National Bank v. CarpentierNew York Supreme Court · 1881