Ewald v. Faulhaber Stable Co.

105 N.Y.S. 114 | N.Y. App. Term. | 1907

Seabury, J.

The complaint alleges that the defendant drew a check upon the Commercial Trust Company, to the order of A. Ewald, Jr., and delivered the check to the payee; that thereafter the payee died and the said check was presented for payment to the Commercial Trust Company and payment was refused; that letters testamentary were issued to the plaintiff, and that there now remains due and unpaid from the defendant to the plaintiff the sum of $550. The defendant demurred to the complaint upon the ground that it does not state facts sufficient to constitute a cause of action. The court below overruled the demurrer and gave judgment for the plaintiff for the amount demanded in the complaint. Section 160 of the Negotiable Instruments Law provides as follows: “ To whom notice of dishonor must be given * * * Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptanee or non-payment", notice of dishonor must he given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged.” No facts are alleged in the complaint bringing this case within any of the provisions excepted from the operation of section 160 of the ¡Negotiable Instruments Law. An allegation that notice of dishonor was given to the drawer is necessary to the statement of a cause of action upon the check against the drawer, and the absence of such an allegation renders it demurrable, upen the ground of insufficiency. Goodwin v. Cobe, 24 Misc. ¡Rep. 389; Scanlon v. Wallach, 53 id. 104.

The judgment appealed from should be reversed, with costs; the demurrer sustained, with costs, and with leave to the plaintiff to plead over within six days upon payment of costs.

Gildersleeve and Platzek, JJ., concur.

Judgment reversed, with costs; demurrer sustained, with costs, with leave to plaintiff to plead over within six days upon payment of costs.