Badt v. Miller

135 N.Y.S. 13 | N.Y. App. Div. | 1912

Miller, J.:

The complaint alleges the making of a promissory note by the defendant Daniel J. Meyer to the order of, and its delivery for value to, the defendant John J. Carroll; the indorsement thereof by the defendants Marguerita T. Meyer and Fred C. Meyer before delivery for the purpose of giving credit with the payee; the successive indorsements in blank and delivery of the note for value and before maturity by John J. Carroll, Thompson W. Miller, the respondent, and John Sehorling, respectively; that before maturity and for value the note came into the possession of Marcus Badt; that at maturity the note was presented at the place designated therein; that payment was demanded and refused, whereupon the note was duly protested for non-payment; due notice thereof given to the defendants Marguerita T. Meyer, Fred C. Meyer, John J. Carroll, Thompson W. Miller and John Schorling, and that before the commencement of the action the cause of action for a lawful consideration was duly assigned by the said Marcus Badt to the plaintiff. No opinion was written by the learned justice at Special Term, and the respondent neither by oral argument nor by written brief attempted to support the order on this appeal. It is stated in the brief of the appellant that the only point urged by the respondent at the Special Term was that the complaint was bad for the failure to allege notice of presentment, dishonor and protest to the maker, but, of course, that is not required even to charge the maker, let alone an indorser to whom due notice was given. We think the complaint states a cause of action. The order should, therefore, be reversed, with ten dollars costs and disbursements, and the plaintiff’s- motion for judgment and upon the pleadings granted, with ten dollars costs. Ingraham, P. J., Laughlin, Scott and Dowling, JJ., concurred. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.