
    Price v. McClave.
    A complaint upon a promissory note against maker and endorser, is not sufficient, under section 162 of the Code, if it fails to aver that the maker made the note, and that the -endorser endorsed it, although the complaint contains a copy of the note and of its endorsements. An averment that a note was -protested, is not equivalent to an averment that it was duly presented for • .payment to the maker, and payment was refused. (3d Abbott, 253.)
    At Special Teem,
    May, 1856.
    This action came-before the court on a demurrer to the complaint.
    G. Carpenter, for plaintiff.
    
      Mr. Mitchell, for defendants.
    
      
       In Prindle v. Caruthers, decided by the Court of Appeals, in June, 1857, “the complaint averred that the defendant made ‘his contract in writing, (giving a copy,) by which, for value received, he promised to pay H. 0. or his wife, annually, on the first day of April, during the life of the longest liver of them, the sum of two hundred dollars, if called for, or neededthat such contract is, and was, prior to April 1, 1854, the property of plaintiff by purchase; that H. C. died March 30, 1854; that H. C.’s wife is living; that after the 1st of April, 1854, plaintiff demanded the two hundred dollars payable on that day; that defendant has not paid, and is justly indebted in that sum, with interest. Held, on demurrer, that the complaint is sufficient. The remedy for such formal defects as in this case, to expressly aver, a consideration for the contract, and to state from whom the plaintiff purchased, is by motion under section 160 of the Code, to make the pleading more definite and certain.
      “ If the complaint should be held insufficient, as a common law pleading, on the ground that the plaintiff does not make title to the contract, it is sufficient, under section 162 of the Code. Reversing unanimously." (S. C. 10 Howard, Pr. R. 33.)
      The foregoing note of the decision made by the Court of Appeals, is taken from The Evening Post, for which an abstract of its decisions in June, 1857, was prepared by the reporter of that court. If Prindle v. Caruthers, as reported in 10 How. Pr. R. 33, was unanimously reversed, and on the grounds above stated, then it may well be doubted, whether the complaints in Lord v. Chesebrough, (4 Sand. S. 0. R. 696,) and Alder v. Bloomingdale, (1 Duer, 601,) should not have been held to be good on general demurrer.
    
   Duer, J.,

held the proposition first above stated, on the authority of Lord v. Chesebrough, (4 Sand. 696,) and Alder v. Bloomingdale, (1 Duer, 601,) and also referred to Bank of Geneva, (8 How. Pr. R. 51.)

He held the second proposition on the ground, that although notice of protest is valid as a notice of dishonor,, it by no means follows that an averment of protest is a sufficient allegation, of a due presentment ■ of the note to the maker and of his* refusal to pay it, in a complaint, in which ¿11 the facts constituting the cause of action are required to be stated. The fact of a protest, however irregularly or improperly made, would prove an. averment of mere actual protest.

On appeal to the General Term, the order sustaining the demurrer was affirmed.  