Gay v. Paine & Paine
New York Supreme Court
Demurrer to complaint against the indorsers of a promissory noté, because “ it does not state facts sufficient to constitute a cause of action.” The note declared on was payable at the Mbany City Bank, and the defect pointed out by the demurrer was in the averment of presentment and demand. They were laid in these words: “ When the said note became due, it was duly presented for payment to the defendant Thomas A. Paine, and payment thereof duly demanded.”
1Opinion of the Court
Gridley, Justice.
It is settled in this state that in a suit against the maker, on a note payable at a particular place, it is not necessary to aver a presentment and demand at that place. If in fact the defendant had funds at the place, which would have been paid on demand, he must show that fact in defence, and that will relieve him from damages and costs, though not from the debt (see Wolcott vs. Vansantford, 17 John. R. 248; Caldwell vs. Cassidy, 8 Cow. R. 271; 3 Wend. R. 1; 17 Mass. 389; 13 Peter’s R. 36).
But it is equally well settled, that in a suit against an indorser, the holder must…
2Cases cited1 opinion
- Woodworth v. President, Directors, & Co. of the Bank of AmericaNew York Supreme Court · 1821
3Cited by8 opinions
- Miles v. Mutual Reserve Fund Life Ass'nWisconsin Supreme Court · 1901
- South Milwaukee Co. v. MurphyWisconsin Supreme Court · 1902
- Youngs v. PerryAppellate Division of the Supreme Court of the State of New York · 1899
- Frankfort Bank v. CountrymanWisconsin Supreme Court · 1860
- Ferner & Kraushar v. WilliamsNew York Supreme Court · 1861
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