
    Louis Sherman, Plaintiff v. Joseph Ecker et al., Defendants.
    (City Court of New York, Special Term,
    March, 1908.)
    Negotiable instruments — Actions — Complaint — Demand, presentment and notice.
    In a complaint in an action on a promissory note against the indorsers, an allegation of notice to the indorsers of presentment, demand and nonpayment, is necessary; and an allegation that the note was protested for nonpayment is not equivalent thereto.
    
      Action upon a promissory note. Demurrer to complaint.
    Max Sheinart, for plaintiff.
    Geza Eichhorn for defendants.
   Finelite, J.

The plaintiff brings an action on a promissory note to recover the sum of $501.45 and interest. By the allegations of the third paragraph the plaintiff alleges that on or about the 24th day of October, 1907, when said note became due, said note was duly presented for payment at the time and place designated therein and payment thereof demanded and refused; by the fourth paragraph the said note was duly protested ” at an expense to the plaintiff, and hy the fifth paragraph that due notice of such protest was given to the defendants and each of them. The defendant, one of the indorsers, challenges this complaint by demurrer in that it fails to allege that notice of presentment, demand and refusal to pay said note was given to the defendants. It is true that the term protest ” includes in a popular sense all the steps necessary to fix the liability of a drawer or indorser upon the dishonor of commercial paper, and to which he is a party, or, accurately speaking, it is the solemn declaration on the part of the holder against any loss to be sustained by him by reason of the nonacceptance or even nonpayment, as the case may be, of the bill in question. Daniel Keg. Inst. 5th ed.), § 921. The same author says: “ When a protest is necessary in order to charge the drawer or indorser the notice should state that the bill was protested in order to show that his liability was fixed.” The statute requires notice to indorsers of presentment, demand and nonpayment, and unless the allegation is incorporated in the complaint such complaint does not state facts sufficient to constitute a cause of action and is insufficient on demurrer. Jaffray v. Krauss, 79 Hun, 449; 29 N. Y. Supp. 987. As against an indorser an averment in the complaint that the note was protested for nonpayment ” is not equivalent to an averment that the note was presented to the maker and payment refused, since a protest may in fact have been made and yet the note not have been presented for payment to the maker. Pahquioque Bank v. Martin, 11 Abb. Pr. 291. Demurrer sustained, with costs, with' leave to plead anew iipon payment of costs.

Settle judgment on notice.  