Central Coal Co. v. Romel Holding Co.

The plaintiff’s case consisted of the production of the note and of an alleged notice of dishonor and protest, which appeared on its face to be dated one year after the note was due. *41After offering these papers in evidence plaintiff rested. The defenses were, first, by the corporation that there Was a prior action pending. The prior action consisted of one started by the service of a summons upon the individual defendant in this action as an officer of the defendant corporation. The corporation appeared specially to deny his connection with the corporation and to have the service vacated. Nothing was done by the plaintiff to discontinue this action and the present action was started while the prior one was, and so far as appears is still pending. The plea of a prior action pending is, therefore, good.

The individual defendant Kessler’s. defense is failure to give notice of dishonor. The plaintiff maintained that under section 368 of the Civil Practice Act it was necessary for the defendant to make an affidavit that he had not received notice of dishonor or else the receipt of such notice Would be presumed, but it appears from the notice of dishonor itself that it is palpably ineffective.

Judgment reversed, with thirty dollars costs, and complaint dismissed, with costs.

All concur; present, Bijur, Lydon and Levy, JJ.