p. 274William J. Townsend, Resp’t, v. Thomas Auld, App’lt.(New York City Court, General Term,Headnote
1. Bills and notes—Protest.Duo demand of maker, non-payment and due notice of same to the indorser is sufficient to charge him on a note, without formal or technical protest.
Proof of any or all of such facts can be made by parol evidence.
3. Same—Notary’s certificate.
A notary’s certificate, in case of protest and in the absence of the indorser’s affidavit of non-receipt, is presumptive evidence of such facts as are so certified.
Notice to an indorser of demand and non-payment may be given through the post office, when such indorser and the sender reside at different post offices.
The due mailing of such notice is, in itself, sufficient to charge an indorser.
Appeal by defendant from judgment, on* verdict directed by the court for plaintiff, and order denying him new trial.
Theo. H. Friend, for app’lt; Louis F. Murray, for resp’t.
The action is against defendant as payee and first endorser of a promissory note, dated New York, and payable at a bank in Tarrytown, which plaintiff took in renewal of a dishonored note for like amount, by same maker, and upon which the defendant was third endorser. The complaint alPeges due demand, non-payment, protest, and notice of same; and the answer denies these allegations and that plaintiff is the holder, while admitting the making of the note, and defendant’s endorsement. The defendant did not at any time, serve, as required by § 923 of the Code, an affidavit to the effect that defendant had not received such notice. 'At trial the notary public’s certificate of protest was admitted in evidence against defendant’s objection that it was not in proper form, in that it did not contain a statement that New York, the place to which the notice was mailed to defendant, was his usual or reputed place of residence. The certificate did not contain such statement, although it stated that such notice had been duly mailed to the first endorser, Thomas Auld, (defendant) directed to New York, and every other fact permitted by § 923 to be so stated. The omission of such statement as to defendant’s residence might have been fatal if the instrument had been a foreign bill of exchange, for such bills must be protested; but this note is an inland bill, executed, delivered and made payable within this State, and as to such bills the rule is that due demand on maker, non-payment, and due notice of
p. 275same to the endorser is sufficient to charge him, without a formal or technical protest, and proof of any or all of the facts necessary to charge him can be made by parol evidence. This section of the Code says that the notary’s certificate, in case of protest, and in the absence of the endorser’s affidavit of non-receipt, shall be presumptive evidence of certain facts therein named, provided they are certified, which means, presumptive evidence of such facts as are so certified. This certificate contained a statement of every fact permitted by this section, except the one as to defendant’s usual or reputed residence, hence was properly admitted in evidence to prove every fact necessary to charge the endorser, except as to whether the notice addressed to him at New York, was mailed to him at his residence, and proof of this fact was properly supplied by his own testimony, that before such mailing, at that time and ever since, he has resided in New York. This certificate was only presumptive evidence of the other necessary facts, and defendant had the right to show, by extrinsic evidence, that there had been no such demand, non-payment, protest, or such mailing of such notice, which, however, he did not even offer to do. Hence, upon the proof there was nothing to go to the jury upon, and it became the court’s duty to direct for plaintiff, as he did, and moreover, the defendant did not request to go to the jury, but relied upon his two exceptions to the exclusion, on plaintiff’s objection, of evidence offered by him and which will be now discussed. Appellant claims error, because the court would not allow him to say whether or not he had received the notice of protest, etc., which the certificate proved was duly mailed at Tarrytown, addressed to him at New York, which was his actual residence, as shown by his own testimony. This was not error, and to have allowed such proof of non-receipt of notice against plaintiff’s objection, would have been reversible error, if the verdict had been for defendant. The rule of the law merchant has ever been that notice to an endorser of demand and non-payment, may be given through the post-office, when such endorser and the sender reside at different post-offices, and if properly addressed and mailed will charge the endorser, whether he ever receives it or not. How could a honafide holder of a note ever protect his holding by finding proof to contradict an endorser’s statement that he had never received the notice of demand and non-payment sent by mail? The due mailing of such nbtice is in itself sufficient to charge an endorser. Judge Earle in Gawtry v. Doane, 51 N. Y. 89 , says: That it may be proper to insert in the endorser’s affidavit, permitted by the Code, the denial of his receipt of notice of protest, but is not a proper denial to insert in his answer, and that: “It is wholly immaterial whether the endorser has received the notice. The only material question is whether notice has been properly served, and the rights of the holder of a note are not affected if the notice does not reach the endorser.” And so, too, it is said in Arnold, v. Rock R. V. R. R. Co., 5 Duer (12 N. Y. Superior R.) 210, that “an answer denying that a notice of protest was received, would deny an immaterial fact.” The defendant’s other exception is to the exclusion of a
p. 276paper signed by the maker, purporting to certify to this defendant that the note in suit was endorsed by him for the purpose of taking up another note .for like amount, by same maker, also endorsed by this defendant, and then held by this plaintiff under protest. There was not the slightest evidence that this plaintiff knew or ever heard of this paper, and it was, properly excluded for that, if no other reason, and so, too, because it was mere hearsay evidence, and the person signing it was not in court' or his absence explained, and moreover, the very facts to which it purported to certify were fully proven by the best evidence, first by defendant’s exhibit 1, being plaintiff’s letter, acknowledging that the note in suit was given in renewal of the one mentioned in the properly rejected certificate, and secondly, by defendant’s exhibit 2, which is the very note itself, duly endorsed by the payee and-this defendant, and so mentioned in such rejected certificate.
The judgment and order are affirmed, with costs.
McCarthy, J., concurs, Ehrlich, C. J., dissenting.