Waisman v. Landman ( 1910 )

PER CURIAM.

This action was brought against the two defendants upon a promissory note. The complaint sets forth that the defendant Landman made his note payable to the plaintiff, giving the date and amount thereof, and then avers that the same was presented at maturity at the place of payment, and payment demanded and refused, and that the same was duly protested, of which the “defendants” had due notice. The defendant Solomon demurred to the complaint upon the ground that as to him it did not state facts sufficient to constitute a cause of action. His demurrer was overruled, and from an interlocutory judgment entered thereon he appeals.

There is no allegation in the complaint of any indorsement upon the note, by Solomon or any one else, and there is nothing to show, or tending to show, any liability existing in favor of the plaintiff against the defendant Solomon. The cases cited by respondent apply to actions between maker and payee, but have no application to an indorser of a note. To render a defendant liable on a note as an indorser, the complaint must show such indorsement, demand "for payment, due protest, etc.

Interlocutory judgment reversed, with costs, and judgment against defendant Solomon vacated, with leave to plaintiff to amend his complaint within six days, upon payment of costs in this court and in the court below.