Mechanics' Banking Ass'n v. Place — 11 N.Y. Super. Ct. 212

Majority

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The Mechanics’ Banking Association v. Nelson Place, impleaded with another.

Headnote

A proper notice of the dishonor of a promissory note, on -which the defendant was an endorser, was left by a notary at his usual place of business, and within business hours, and was delivered to a person then in the office; but there was no proof that this person was in the employ of the defendant.

Held, that the notary was not bound to ascertain whether the person so in possession of the office, and apparently representing the defendant, was in his actual employ, as clerk or otherwise; and that the service of the notice was therefore sufficient to charge the defendant as an endorser.

Held, that the notice was good, although it was proved on the part of the defendant, that he had no agent or clerk in his office, and that the notice had not been received by his partner.

Judgment dismissing complaint reversed, and new trial ordered — costs to abide event.

(Before Campbell and Hoffman, J.J.)

Jan. 10; Jan. 21, 1855.

Appeal by tbe plaintiffs from a judgment at Special Term, dismissing tbe complaint.

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The action was on a promissory note for $363.09 on which the defendant Place was sought to be charged as last endorser. The complaint was in the usual form, and averred all the facts necessary to be proved to charge the defendant.

The answer denied demand of payment and notice of refusal.

The action was tried by the Chief Justice without a jury, 26th April, 1854. The following is the testimony given on the trial, and the decision thereon by the Chief Justice:

A. E. Ellis was produced as a witness on the part of the plaintiffs, and was sworn, and testified, that when the promissory note became due, he presented the same to the City Bank and demanded payment, which was refused: that on the seventh day of November, A. D. 1853, he served a notice, of which the following is a copy, at the office of Nelson Place, No. 69 South street, New York; the sixth of November being a Sunday. The notice is as follows, viz:

“New Yoek, Nov. 5th, 1853.

“ Sib, — Please to take notice, that a promissory note made by William H. Rockwood for $363.09 dollars, endorsed by you, was this day protested for non-payment, and that the holders look to you for the payment thereof.

“ Your obt. servant,

“Wm. Bloomfield,

“ Notary Public and Attorney at Law, No. 20 Nassau st.”

The notice was in a note folded and directed to Nelson Place.

On his cross-examination the witness testified as follows: I do not know Nelson Place personally; was at his office yesterday morning to inquire whether there was any other Nelson Place; left the notice with a man at defendant’s office; cannot say who he was; I left it with him because it is customary; I did not ascertain who he was or what he was doing there; I don’t know what he was doing there; my original memorandum of the service is in the notary’s book, and reads thus: “ Nelson Place, to a man in his office.” I did ask if defendant was in, and the man said he was not; that was all I asked. It is my custom to ask whether the person I leave notices with has to do with the office, unless he appears to be employed there; a railing incloses the

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desks in the office, and there is nothing there for sale; there are two offices with a door between. The person I served, I think, was in the front office; am not certain which is the largest; serve five or six notices every day; am the notary’s clerk; can not remember all, and therefore make a memorandum in a book; made a memorandum of this service in a book on the day or on the next morning; cannot swear distinctly to the mari; the notice was signed by me, and not by the notary; the certificate of protest is also in my handwriting.

The defendant produced as a witness John Watts, Jr., who being sworn, testified, that he is a partner of the defendant since the 5th or 6th October last; has had no. agent or clerk in his .office; is a ship-broker: the office is attended exclusively by me and Mr. Place: in November last, nor at any other time do I recollect of any notice of protest served on me; never saw a notice in the office; defendant-was at the office every day; so was witness; office is on the second floor; there is another office in front; we occupied two rooms in company with a Mr. Elkins; other offices are up stairs; defendant lives in Norfolk street, and lived there last November.

On his cross-examination he said that he had no particular recollection of the 7th November; am out of the office during the day for a half hour to the time, and it may have happened that myself and defendant were both out together, but this occurred rarely.

George P. Elkins, was produced as a witness for the defendant: Occupies offices No. 69 South street, adjoining those of the defendant : has a separate entrance side by side of the defendant’s; communication between the two by a single door and open all the while; office of witness is smaller; never, to my recollection, received last November a notice of protest;,Mr. Place has no clerk.

On his cross-examination, the witness testified that he employs no clerk — a woman cleans his office — I very rarely go out, but sometimes do, but never without either Place or Watts being there; but do not know that he remains there all the while during my absence.

The counsel for the respective parties summed up before the court, and the Chief Justice dismissed the complaint. He subse

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quently in conformity to the Code, made and filed his decision in writing, stating the facts found by him, and his conclusions of law thereon, in the words following:

That the note in controversy was presented for payment at the City bank, whereat by the terms thereof it was made payable, and that payment was demanded, but the note was not paid.

That a written and printed notice such as is set forth in this case, was folded and directed to the defendant, by name, and left at his place of business on the day for that purpose mentioned in the case.

That in the absence of the defendant at the time, the said notice was left -with a man at the office of the defendant, and that the person leaving said notice did not inquire who such man was, nor did he know whether the person with whom the notice was so left, was in any way connected with the office.

That the person leaving said notice was the clerk of the notary, who protested the note, and that at, or immediately after, the time he made a memorandum in writing, in a book kept by him for such purposes, “ Nelson Place, to a man in his office.”

That it is the custom of said clerk to inquire whether the person with whom he leaves such notices has to do with the office, unless he appears to be employed there.

That my conclusions of law, from the above facts are, that the service of the notice of protest was not valid and sufficient, nor good in law, and that the complaint ought to be dismissed.

JR. jffl. Mount, for the plaintiffs, appellants,

argued as follows:

As there is no dispute about the facts, the defendant furnishing no testimony contradicting the plaintiff’s witness, the question is solely one of law for the determination of the court. (Re-mer v. Downer, 23 Wend. 623 ; Spooner v. Bank of Salina, 8 Hill, 520 .)

The facts, therefore, which are presented by the testimony, and not the facts found by the Judge, must govern the judgment of the Court.

The finding of the Judge contradicts the testimony in an important point, viz., his honor finding “that the person leaving the notice of protest did not know whether the person with whom the notice was so left was in any way connected with the office.”

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- The service of the notice of protest was valid, sufficient and good in law. Because — •

1. It was left at the defendant’s usual place of business. (Story - on Prom. Notes, § 382; Williams v. U S. Bank, 2 Peters, 101; Bank of Columbia v. Lawrence, 1 Peters, R. 582.)

2. That it was probable- — almost certain — that it was left with a person connected with the office. The person with whom it was left answered the questions of the notary’s clerk; and the defendants’ own witnesses show that the office was not left without some person in charge of it.

3. The notary’s clerk testified that he could not remember all, and the memorandum in his book must be taken strongly in favor of the plaintiff, in connection with the testimony as to his custom to make inquiry. {Cole v. Jesup, 9 Barbour, S. C. R. 395.)

4. It is not required of the notary to see that the notice is brought home to the party. {Bank of Utica v. Bender, 21 Wend. 643 .)

Lastly, the form of the notice was sufficient and good in law. (Story on Prom. Notes, § 390; Davis v. Coddington, 1 Corns. R. 186; Kverard v. Watson, 18 English Law and Eq. Reports, 194.)

W. M. Evarts, for defendants, contra:

The endorser having his residence and place of business in the same town as the place of presentment of the note for payment, notice of dishonor is required to be either by personal delivery or by leaving it at his place of business or domicil. (.Ireland v. Kip, 11 Johns, 231 ; iSmedes v. Utica Bk. 20 Id. 372 ; Sheldon v. Benham, 4 Hill, 129 .)

The delivery at the place of business must be, either by leaving the notice there in such suitable place as is accessible, or placing it in charge of some person in the employment of, or connected with, the party to be served with notice.

The .proof failed to establish service of the notice in either manner.

Delivery of the notice to a stranger does not affect the endorser, although he be casually in the endorser’s office during the absence of himself and all connected with him.

The burden of proof is on the plaintiffs,- to show the notice carried to a point of actual or constructive delivery to the endorser.

They do not satisfy this requirement by showing the notice in

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the hands of a third person whom they employed to deliver, but the endorser never employed to receive, the notice. This third person should have been called as a witness.

In my opinion the service of the notice of protest was valid and sufficient. It was conceded that if the notice had been laid down on the defendant’s desk in his office, he being absent therefrom, it would have been sufficient. It cannot be, therefore, that the handing it to a person in the office of the endorser, in office hours, such person then being the only person there, would be insufficient. If giving the notice to a fellow boarder in a boarding-house, or leaving it, as in other cases, with a neighbor, when the endorser’s house was found closed, was sufficient, it seems to us very clear that leaving it in the endorser’s office in office hours, with the only person then found in the office, would be clearly sufficient. It has been held that a mere verbal notice, at the endorser’s place of business, to him, would be sufficient, and that if a notary called at the endorser’s office, in office hours, and found no person in to give the notice to, that was sufficient even if no written notice was left.

The judgment should be set aside, and a new trial be ordered.

The only question in this case, is whether the service of the notice of protest was sufficient. And looking at the facts as they were proved upon the trial, the question may be stated in this form, whether service of such a notice, within the usual hours of business, and at the usual place of business of the endorser, in his absence, upon a person in such place, but not proven to be in some way connected with him, is good service ?

In Williams v. Bank of the United States, (2 Peters, 96,) the action was against an endorser. A notary public called at the house of the endorser, who resided in the city of Cincinnati, which he found shut up, and the door locked. He inquired of the nearest resident, and was informed that the party had left town on a visit. He left a notice at the house of a person adjoining, with a request to deliver it. This was held sufficient. In Crosse v. Smith, 1 Maule & Selwyn, 545, a call was made at the counting house of the drawer of a bill, during the hours of busi

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ness. The outward door was open, but the inner locked. ' The party knocked, with noise enough to be heard, if any one had been within. Ko one appearing, he left the house, and took no further steps to give notice. Held sufficient, and this although some of the drawers lived at a short distance from the place. Lord Ellenborough said: “ The counting house is thé place where all appointments respecting the business, and all notices should be addressed, and it is the duty of the merchant to take care that a proper person be in attendance.”

The case of Bancroft v. Hall (Holt’s C. M. S. 476) contains also the rule that if a merchant’s counting house is closed within the usual hours for remaining open, a notice attempted to be left there will avail.

In The Bank of the United States v. Hatch, (6 Peters, 256,) a notice served on a fellow boarder at the lodging house of the party, he being absent, was held a legal notice.

In Goldsmid v. Maurit, reported in Chitty, p. 827, (and see an able account of it in Chitty on Bills, 12 Am. ed. p. 532, N. Y. Engl. ed. 472,) the suit was against endorsers of a bill, the plaintiff proved that they sent a clerk to the defendant’s counting house, between four and five in the afternoon. Ko one was there. The clerk saw a servant girl about the house, who said no one was in the way, and he returned having left no message with her. Lord Eldon told the jury that if they thought the defendant ought to have had somebody in the counting house at the time, he was of opinion that the plaintiffs had done all that was necessary, that the notice was in law sufficient, if the time was regular. The jury thought that the plaintiff had done all that was necessary.

Within the rule stated in these authorities, it may be considered that a person found in the place of business of a party to a note within regular hours of business, when the latter is absent, may be considered as representing such party. If no one were in the office, nothing more than a call, or that and leaving the notice under or upon the door would be sufficient. The case cannot be weakened by the fact of the notice being left with one apparently trusted with possession.

The order dismissing the complaint must be set aside, and a new trial granted, with costs to abide the event.

Cases cited

Bank of Utica v. Bender 21 Wend. 643 N.Y. Sup. Ct. p. 216