Paton v. Lent — 11 N.Y. Super. Ct. 231

Majority

p. 231

Wm. Paton, and others, Respondents, v. Charles Lent, Appellant.

Headnote

An 'averment, in an action against an endorser, that the note was presented to the maker and payment demanded, is proper, when it was in fact presented at his last place of residence and business, from which he had then recently removed, and, after diligent inquiry, he could not be found, so that it could be presented to him personally.

The contents of a notice to the endorser may be proved by parol.

It is sufficient notice to an endorser, though residing in the city in which a note is protested, to mail it to him, when he resides some eight miles from the place where it was protested, and there is a post-office at the place where he resides, no point being made that he does not usually receive his letters at such post-office.

(Before Campbell, Bosworth and Hoffman-, J.J.)

Jan. 19; Jan. 27, 1855.

This action came before the court on appeal from a judgment. It was tried on tlie 8th of May, 1854, before Mr. Justice Duer and a jury. It was commenced against the defendant and one Theodore Lent. The complaint states that Theodore Lent, on the 12th of May, 1853, made and delivered to Charles Lent, his promissory note, payable four months after date, for $500, and that said Charles Lent endorsed and delivered it to the plaintiffs, and that, at its maturity, it was duly presented to the maker and payment demanded, that it was dishonored, protested, and notice served on Charles Lent the endorser; that the plaintiffs -are the lawful owners, &c., of said note, and that the defendants are indebted to them thereon in the sum of $500.75, with interest, and demands payment for that sum, with costs.

The answer of the defendant, Charles Lent, puts in issue the presentment of the note to the maker, and demand of payment of him, and the giving of notice thereof to the said defendant, the ownership of the note by the plaintiffs, and the indebtedness charged by the complaint.

Theodore Lent put in no answer.

The Notary testified, that on the 15th of September, 1853, he presented the note at the maker’s last place of business in Broadway, and where shortly- prior to that date he was carrying on

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business, and also at bis last place of residence, tbe maker of tbe note not being found at either place. That be inquired at both places, and at other places, and of tbe plaintiffs, and examined the Directory, to ascertain the residence of tbe maker, and of . Charles Lent. He could not ascertain where tbe maker could be found. Tbe Directory stated that Charles Lent resided at King’s Bridge, at which place it was admitted there was a post-office. The Notary, thereupon, protested the note, and on the 16th, about the middle of the day, deposited a notice, in proper form, in the post-office, in New York city, directed to Charles Lent, at King’s Bridge.

• The defendant objected to evidence of facts to excuse a personal presentment' of the note, and demand of payment, on the grounds that no such facts were alleged, and also to parol evidence of the contents of the notice mailed to the endorser. The objections were overruled, and defendant’s counsel excepted.

The Notary’s certificate of presentment, demand of payment, protest, and of notice to the endorser, stating them to have been made,- as he had testified, were then read-in evidence, and the plaintiffs rested.

The counsel for the defendant, Charles Lent, thereupon moved the court for a dismissal of the complaint, on the grounds:

L -That the said complaint avers a presentment of the promissory note on which the suit is brought, and a demand of payment of the maker, and not facts to excuse such presentment and demand, and the evidence shows no presentment and demand, but only facts to excuse them.

II. That the evidence does not show due diligence on the part of the plaintiffs to ascertain the residence of the maker.

HI. That due and sufficient notice of the dishonor of the note was not shown to have been given.

IV. That the evidence is insufficient to sustain the action.

The court denied the said motion for a dismissal of the complaint, and the counsel for the defendant excepted. The court then directed a verdict to be taken for the plaintiffs for the amount claimed, with interest.

The jury, under the instructions of the court, rendered a verdict for the plaintiffs against the defendant, for five hundred and thirty-three dollars and thirty-six cents; and a judgment having

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been entered on the verdict, the defendant Charles lent appealed from it to the General Term.

Wm. S. Rowland, for defendant and appellant.

-Bellows, for plaintiffs and respondents.

By the COURT.

Enough was done by the notary, to make a proper presentment and demand of payment. When the maker of a note, just, before it matures, abandons his former residence and place of businéss, and cannot be found after diligent inquiry, the note may be protested. In such a case it is proper, if not indispensable, that the note should be presented at his former residence or place of business. (Spies v. Gilmore. 1 Coms. 326.)

In this case, it was presented at both places. Under such circumstances, it was proper to aver presentment to the maker. The evidence establishes that it was presented to him, and is sufficient to support the allegation of presentment contained in the complaint.

There is nothing, in the objection, that the contents of the notice to the endorser cannot be proved by parol. The contrary has been so uniformly held, that the citation of authorities is unnecessary.

Notice was duly-mailed to the endorser. He resided some eight or ten miles from the place where it was protested. His residence and the place of protest were in the same city. But the limits of the city are coextensive with those of the county. When the place of protest and of the residence of the endorser are more remote, than in many instances, when in different towns of the same county, there is no reason why notice by mail should not be sufficient, when there is a post-office at the place where the endorser resides, and no suggestion is made, or proof, offered that he does not usually receive his letters at such post-office: (Ransom v. Mach. 2 Hill, 588 .) We think there was no error committed in the decisions made at the trial, and that the judgment should be affirmed.