Majority
p. 496Ireland and another against Kip. NEW YORK, Oct. 1813.
Headnote
Fultinf? a m¿ire of the sion.ppyment of a i'ole in. the f'tistqffio': mJx’t/vYorfc.j direr?<' ! ioihe £7idt?rcaethevcs whose place of was thn“"' mite * and a hslf fir m the postofficog and within the city* h not s-iEcient to charge the endorsor, especially when the letter-carriers did not deliver letters at that distance and the place of the endorsóos residence waff known to the holder.Whr re the pí/reaver Shifts same city ov to vis. the notice must be or left at hi-' dwcllirC'hoGsx
THIS was an action of assumpsit brought against the’defendant as endorsor of a promissory note, dated the 2SJ April, 1811, made by Samuel Kip for (£00 dollars, payable to the defendant ov order, thirty days after date. The cause was tried at the Nem-Torh sittings, in November last, before Mr. Justice Spencer. To ^ prove a nonce to tus deiendam. ol the non-payment of the note, the plaintiff called the clerk of a notary, who stated that on the
p. 497
25th May last, he called several times at the store of the maker of the note, to demand payment, but found it shut up, and no person there to pay the note; that the Monday following, being the 2fth May, he sent a written notice, in the usual form, to the postoffice in the city of Ncru-York, directed to the defendant, mentioning that the note had not been paid; No other notice of non-payment was given to the defendant. The witness knew that the defendant, at that time, lived at a place called Kip’s Bay, on New-York island, and within three and a half miles of the old city-hall in Wall-street. It was the practice of the notary to put notices "of non-payment of notes into the post-office, when the endorsers resided out on the island as far as the three mile stone.
The defendant’s counsel moved for a nonsuit, on the ground that the plaintiff had not proved a sufficient notice of the non-payment of the note; but the judge overruled the motion.
The defendant then called the notary of the Merchants’ Bank, who testified that it was his practice always to give notice to endorsers, who were to be found within the city, however distant from the city-hall, by leaving the same at their places of residence in the usual way °, and that he had delivered such nstices to persons residing at Kip’s Bay, and, among others, to the defendant, • whose place of residence was well known. The witness, on his cross-examination, said he knew of no usage or custom of the city of New-York, as to giving notice to endorsers. /. Gelston, a witness, stated that he was a neighbour of the defendant, whose residence at Kip’s Bay was permanent and notorious; that the letter-carriers of the postoffice did not carry letters to persons residing at Kip’s Bay; and that letters left at the postoffice' for persons residing there would not reach them, unless called for at the postoffice.
The plaintiffs’ counsel offered to prove that the maker of the note, at the time it became due, was a merchant, and was insolvent, and had assigned property to the defendant to secure him as endorser. This evidence was objected to, but admitted by the ’judge. Several witnesses were then examined as to the solvency of the maker of the note.
The notary with whom the note was left, and who was the notary of the Manhattan Bank» also stated that it was his practice to deliver notices to endorsers of non-payment, at their places of residence, if within the compact part of the city; but if they resided beyond the compact pait of the city, he caused such notices
p. 498contended that the notice in this ease ought to have been left at the defendant’s house or place of residence. The rule as to notice is to be found in all the books which treat of the subject of bills and notes. The only exception is where the party resides in another town or city, in which case, it seems, that a notice put into the postoffice will be sufficient.[2] The endorser, when he puts his name on the paper, does it, under the implied claim of the benefit of the existing rules of law on the subject. There is no such rule as that stated by the notary who gave the pretended notice in this case. The law knows no distinction between one part of a city or town and ano« ther part. Again, a notice put in the postoffice could not reach fue defendant, as the letter-carriers do not carry letters to Kip’s Bay, where the defendant resided. The letter, at least, ought tohave been directed to him at Kip’s Bay, and not generally, atNew-York<, The postoffice is only one of the means of transmitting a notice. It is allowed when the party’s place of residence is unknown 5 but here the clerk of the notary knew that the defendant resided at Kip’s Bay. As to the question of the insolvency of the maker, he said the excuse was applicable only in esses of bills of exchange. (He was stopped by the court.)
to be put in the postoffice ; that he did not know, at the time, where the defendant lived, but if he had known, he did not think he should have given a personal notice to him, unless specially directed to do so. When endorsers resided at Greenwich, which is about two and a half miles from the city-hall, and their names were entered in the ciiy directory, it was his practice to give them personal notice.
Another notary testified that he always considered it as his duty to give persona] notice, or at their places of residence, to endorsors who resided in any part of the city, whether within or without the compact parts thereof,[1]
Th e judge directed the jury to find a verdict for the plaintiff, stating that he did so, with a view to have the points of law raised decided by the court, meaning to give no decided opinion upon them. The jury accordingly found a verdict for the plaintiff.
S. Jones, jun. for the defendant,
p. 499The evidence, as to the insolvency of the maker, was proper and sufficient 5 it went to show that the defendant had not sustained any injury from want of notice. The reason of the rule on this subject applies equally to endorsers of promissory notes, as to the drawer or endorsar of bills of exchange.
Baldwin, contra,
insisted that it was unreasonable to require no-«ice to be sent to the farthest limits of the city of New-York, which were coextensive with the county, and included all the islands in the harbour; he admitted the general rule to be that where the parties reside in the same place, the notice must be personal, or left at the party’s residence. But what is meant by place? Does it mean a certain collection of houses on a particular spot, or does if comprise the whole jurisdictional limits of a city or town 1 If the defendant had lived just across the Hudson, in Jersey, or across the east river, at Brooklyn, which are within two miles of the city-hall, it is admitted that a notice through the postoffice would have been sufficient. The village of Harlaem is within the jurisdiction of the city of New-York, yet, in common parlance, if, is not called or understood to be part of the city of NewYorlc. Many cases might be put to show the great inconvenience of the rule contended for by the defendant’s counsel. Rules in regard to commercial transactions should be equitable and reasonable, and founded in general convenience.
Putting the notice in the postoffice in the city of New-York was not sufficient in this case. There was no post-office at Kipss Bay, where the defendant resided, and the penny-post or letter-carrier does not deliver letters at that distance. The holder of the note was bound to give personal notice, or to see that the notice reached the dwelling-house of the defendant, the place of whose residence must have been known to him.
We are of opinion that a new trial ought to be awarded with costs to abide fop event of the suit.
New trial granted.
END OCTOBER TERM.