Guttman v. Abbott — 110 N.Y.S. 376

Majority

p. 376

GUTTMAN v. ABBOTT et al.

(Supreme Court, Appellate Term.

May 15, 1908.)

Headnote

Bills and Notes—Indorser Before Delivery—Right to Notice of Protest and Presentation.

The obligation of one who indorses a note before delivery is contingent on the failure of the maker to pay at maturity, the due protest of the note, and notice thereof to the indorser; and if he receives no notice of protest or presentment for payment there can be no recovery against him.

Appeal from Municipal Court, Borough of Manhattan, Seventh District.

Action by Sigmund Guttman against Emil B. Abbott and Oscar-B. Abbott. From a judgment' for plaintiff, Oscar B. Abbott appeals.

Reversed, and new trial ordered.

p. 377

Argued before GILDERSLEEVE, P. J., and GIEGERICH and GREENBAUM, JJ.

Henry L. Slobodin, for appellant.

Gustav Goodman, for respondent.

The action was brought upon a promissory note made by the defendant Emil B. Abbott to the order of the plaintiff, and indorsed by the defendant Oscar B. Abbott before delivery. Judgment was rendered for the amount of the note, with interest and costs, from which judgment the defendant Oscar B. Abbott appeals.

He was called as a witness upon the trial, and testified without contradiction that he received no notice of protest or presentation of the note for payment. His obligation as an indorser was, of course, contingent on the failure of the maker to pay at maturity the due protest of the note, and notice thereof to him. Fuller Buggy Co. v. Waldron, 113 App. Div. 814 , 99 N. Y. Supp. 561 .

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.