Hirt v. Vincent

The defendant, William E. D. Vincent, husband of appellant, had been dealing with the plaintiffs for some years prior to the giving of the note in suit; when the note was given, plaintiffs had a mechanic’s lien for $826.99 on certain property in Brooklyn for goods theretofore sold defendant William E. D. Vincent, the whole amount of the plaintiff’s claim at that time being $953.58, of which $826.99 was secured by the lien. On the 29th December, 1891, plaintiffs cancelled their lien and took in payment of the entire claim, $400 in cash and the note in suit. The nofe was made by the defendant, William E. D. Vincent, to the order of the appellant, and by her endorsed to the plaintiff specifically charging her separate estate with payment and stating she “had received full value.” It was made payable at the West Side Bank and matured on the 2d May, 1892. It had' been by the plaintiffs deposited in the Eleventh Ward Bank for collection, which bank on the day of its maturity presented it at the West Side Bank for payment, and payment was refused. The plaintiffs however did not get this note from the Eleventh Ward Bank until the morning óf the 4th of May, 1892, when one of them between 11 and 12 o’clock in the forenoon called at the house of the appellant Passie M. Vincent and delivered a notice of protest to1 her. The only question we deem it necessary to consider upon this appeal is whether or not that notice was in due time. The evidence is clear that the notice of protest was personally handed to the appellant on the 4th of May in the morning, and that a notice was also mailed to her the same day. The counsel for the respondents on the argument contended that there was evidence showing that the Eleventh Ward Bank had sent notice to plaintiffs on the day prior to that time, but we have carefully looked through the testimony and find nothing showing that fact. It is true that the notice of protest is dated on the 3 rd-of May, but Mr. Hagdorn, one of the plaintiffs, testified that the day he mailed the notice to the defendant, he also had the interview with her and served the* other notice on her, and that he was “sure it was the 4th;” thus negativing the inference to be drawn from the date of the notice. If the Eleventh Ward Bank had on the morning of May 3rd notified plaintiffs of the protest of the note, and then the plaintiffs had given the notice they did, the sequence of notices would have been complete and the appellant would have been bound thereby; West River Bank v. Taylor, 34 N. Y. 128 , 130 ; Mead v. Engs, 5 Cow. 303 ; Farmers' Bank v. Vail, 21 N. Y. 485 ; Smith v. Poillon, 23 Hun, 630 -1; s. c. 87 N. Y. 597 -8 ; Manchester v. Van Brunt, 50 St. Rep. 588 . On a new trial it may be shown that the Eleventh Ward Bank having received the note back on the evening of the 2nd after business hours, duly notified the plaintiffs on the following day, in which event the sequence would be complete.. As there must be a new