Studebaker Bros. v. Fuerther

This action was brought upon a check drawn by Leopold Fuerther to the order of Anton Weidman for the sum of $75, and indorsed and delivered by Weidman to Wilber, Norman & Kahn. Payment of check was stopped by the maker. i

The complaint does not allege, nor did the plaintiff prove, that notice of nonpayment was given to the indorser. Motion was made at the close of the plaintiff’s case to dismiss. The court denied the mo*119tion, apparently adopting the erroneous contention of the plaintiff’s attorneys that “the failure to protest waa an affirmative defense.” The motion should have been granted; for, without notice of nonpayment given to the indorser, he was discharged. Negotiable Instruments Law (Consol. Laws, c. 38) § 160.

The judgment, as against defendant Weidman, should be reversed, and the complaint dismissed, with costs, without prejudice to a new action. All concur.