Persons v. Kruger — 45 A.D. 184

Majority

p. 184

Henry H. Persons and John R. Hazel, as Receivers of the Bank of Commerce in Buffalo, Respondents, v. Edward H. Kruger and Fredericka Becker, Appellants, Impleaded with Others.

(No. 1.)

Headnote

Mot-ice of protest —- it may he served on an agent of the indorser of a draft.

A notice of protest of" a draft may be served upon an agent of the payee and indorser, "who has authority from him to transact all the business of indorsing and accepting notes and drafts and to negotiate paper, particularly where he " has negotiated and secured the discount of the draft in question.

Appeal, by the defendants, Edward H. Kruger and Fredericka Becker, from a judgment of the Supreme Court in favor of the plaintiffs, entered in the office of the clerk of the county of Erie on

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the 15th day of -October, 1898, upon the verdict of a jury, rendered after a trial at the Erie Trial Term, and also from an order entered in said clerk’s office on the 14th day of November, 1898, denying the defendants’ motion for a iiew trial made upon the minutes.

Issues of fact were brought to trial at the Erie Trial Term, and a verdict was directed against the defendant Fredericka Becker for $2,792.82, and the issues of fact were submitted to a jury as to the defendant Kruger and a verdict was rendered by the jury in favor of the plaintiffs for $2,792.82. .

The action was brought against Julia Becker, Fredericka Becker, William Becker and Matilda Johnson, constituting the firm of Becker & Co., and Edward H. Kruger and others, to recover upon seven drafts drawn by the Buffalo City Mills, Limited, upon Becker & Co,, No. 355 Kingsland avenue, Brooklyn, N. Y., payable to the order of E. H. Kruger & Co. Each of the drafts was accepted by the drawee and indorsed by the payee to the Bank of Commérce in Buffalo. The answer of Fredericka Becker consists of denials and sets up no affirmative defense.

The earliest of the drafts became uue ana payable on the 19th of October, 1896, and the latest on the 29th day of January, 1897. On the 14th of October, 1896, thé Bank of Commerce, which nad discounted the drafts, closed its doors, and on the next day the bank examiner took possession, and in an action begun by the People of the State of New York for a dissolution of the bank on the 3d of December, 1896, a judgment was entered dissolving the bank' and appointing the plaintiffs receivers, who qualified, and on the 6tli day of December, 1896, took possession of the banking business and the banking office. The drafts in suit all fell due after the bank-had ceased to do business and while the bank examiner and the receivers were in possession.

It is alleged in the complaint that Fredericka Becker was, at the time the drafts in suit were accepted, one of the partners doing business in the city of Brooklyn under the name of Becker & Co. John Becker, her brother, testified that he signed the name “ Becker & Co., John Becker, Attorney,” and it abundantly appears that he had authority to act for the firm, and that Fredericka Becker was a member of the firm.

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C. J. Church, for the appellant Kruger.

Norris Morey and Edward R. Bosley, for the respondents.

No brief has been submitted in behalf of the appellant Predericka Becker. We have looked into the evidence given at the trial and are satisfied that it was sufficient to warrant the trial judge in ordering a verdict .against Predericka Becker, and, therefore, the motion for a new trial made by her upon the minutes was properly denied, and the judgment and order, so far as she is concerned, should be affirmed. ■

The appellant- Kruger raises a question as to whether ■ the evidence was sufficient to show that any notices of protest were served upon Andrew Brown, his agent, and contends that the service of notices of protest upon' Brown, if made, wras insufficient to charge him as indorser. Brown held a power of ‘ attorney from Kruger & Co., authorizing him to transact all the business of indorsing and accepting notes and drafts, and the evidence further indicates that he had á general authority from Kruger to negotiate paper to the Bank .of Commerce; and that in accordance with his authority he transmitted to that bank numerous pieces of paper, including those in suit, and that the same were discounted at his instance and the proceeds were carried to the credit of Kruger & Co., and checked and drawn, from time to time, by Brown, who had general supervision of the business affairs relating to the-dealings with the Bank of Commerce. We think notice to Brown was notice to Kruger.

We are also of the opinion that the evidence in respect to the service of notices- of protest upon Brown was sufficient to require the submission of the questions, raised by the appellant Kruger in respect thereto, to the jury; and that the jury was warranted in finding, as a question of fact, that the notices of protest of the several pieces of paper were duly served upon Brown, and that by virtue of the service of the notices of protest upon Brown, Kruger became liable.

These questions are more fully considered, and discussed in the opinion delivered in the case of Persons v. Kruger (No. 2) (post, p. 181), heard at this term.

In this case neither Brown nor- Kruger was sworn as a- witness,

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tod neither filed an affidavit to the effect that no notice was received of the protest and non-payment of the drafts in this suit, pursuant to section 923 of the'-Code of Civil Procedure. :

Following the rule laid down in McLean v. Ryan ( 36 App. Div. 281 ) and the views expressed in the opinion in Persons v. Kruger (No. 2) (supra), we are of the opinion that the verdict should be sustained, and that the trial judge was warranted in denying the motion for a new trial on the minutes.

All concurred, Smith,- J., not sitting.

Judgment and orders affirmed,-with costs.