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Noonan & Price Co. v. Ekwanok Realty Co.

123 N.Y.S. 915 Court N.Y. App. Term Decision date 1910-06-24 English

Delivered by SEABURY, J.

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p. 915
NOONAN & PRICE CO. v. EKWANOK REALTY CO. et al.
(Supreme Court, Appellate Term.
June 24, 1910.)

Headnote

Biles and Notes (§ 526[1] )—Action on—Indorsee—Notice—Evidence.
In an action on a note against an indorser, the contention of the indorser that he receive no notice of protest was sustained by the testimony of the notary public that his name was not inserted in the certificate, made out at the time of protest, until three days before the trial, by the fact that the indorser’s name was written with different ink from that used in writing the other names on the certificate, and by the testimony of the indorser.
[Ed. Note.—For other cases, see Bills and Notes, Dec. Dig. § 526.*]
Appeal from Municipal Court, Borough of Manhattan, Fifth District.
Action by the Noonan & Price Company against the Pkwanok Realty Company, Paul Silvestri, and Pietro Indelli. Judgment for plaintiff, and defendant Pietro Indelli appeals.
Reversed, and new trial ordered.
Argued before SFABURY, GUY, and BIJUR, JJ.
Freyer, Hyman & Jarmulowsky (I. Maurice Wormser and Adolph Wormser, of counsel), for appellant.
Foster & Cunningham, for respondent.

The plaintiff has recovered a judgment against the appellant Indelli as indorser of a promissory note.

The only question in issue is whether the appellant was duly served with notice of protest. The testimony of the notary was very general, and was based upon the certificate which he made out at the time the note was protested. Upon cross-examination the notary admitted that the appellant’s name was inserted in the certificate three days before the trial of the action, which was long after the note was protested. An examination of the certificate shows that the appellant’s name is written in ink of a different color from that in which the other names on the certificate were written. The appellant’s name was evidently inserted after the certificate was written out. The appellant testified that no notice of protest was received by him.

In view of the positive testimony of the appellant, and the admission of the notary, and the condition of the notary’s certificate, we-think the learned court below was in error in awarding judgment foi the plaintiff.

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