Young v. Catlett — 13 N.Y. Super. Ct. 437

Majority

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Henry Young v. Esther Ann Catlett, Executrix of Henry Laverty, deceased.

Headnote

In an aetion against the indorser of a promissory note his denial in a verified answer, of a demand and refusal of payment, protest and notice, is not an affidavit within the meaning of the statute, so as to exclude the certificate of a notary from being read in evidence.

Where a witness under examination in chief, suggests no want of recollection, and expresses no desire to refresh his memory, nor manifests by his answers any want of ability to answer readily and fully all relevant questions that may be put to him, the examining counsel cannot be allowed to place in his hands any paper or memorandum relative to facts concerning which he has been called to testify.

To permit the examining counsel to place such a paper in the hands of the witness under the circumstance stated, and in anticipation of questions that he means to put, is to suggest to the witness the answers that are desired, and is open to the strongest objections that can be urged against the allowance of leading questions.

The certificate of a notary, stating that he had demanded payment of a promissory note of an assignee of the makers, who were insolvent, “ at his and their place of business,” and that the assignee refused such payment, is sufficient, although it omits to state that the makers were not present when such demand was made.

Semble, that an answer which specifying all the material allegations in the complaint denies them conjunctively, is not a genera] or specific denial within the meaning of the Code. A denial that all the allegations so connected as a whole are true, is not a denial of the truth of each separately considered, and is entirely consistent with an admission that some one or more of them is or may be true.

Judgment for plaintiffs affirmed with costs.

(Before Duer, Bosworth and Woodruff, J.J.)

Dec. 9, 1856;

Feb. 21, 1857.

Appeal by defendants from a judgment for the plaintiff.

The action was brought upon two promissory notes, each made by Caffee and Cutter, and indorsed by Daniel T. Young and Henry Laverty; the first note was for $1698.40, was dated the 4th of April, 1853, and payable six months after date; the second, for $1206, was dated the 9th of July, 1853, and payable four months after date; the suit was originally commenced against Laverty, and after his death, Mrs. Catlett, as his executrix, was, by an order of the court, substituted as the defendant. In her

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answer, which was verified, she, upon information and. belief, denied some of the material allegations in the complaint in this form: “that-whether or not upon the maturity of the notes mentioned in said complaint, the same were or either of them was duly presented to the makers thereof for payment, and payment thereof demanded and refused, and thereupon said notes duly protested for non-payment, and notice of such presentment, refusal, and protest, given to the said Henry Laverty, this defendant has no knowledge or information sufficient to form a belief.” The answer then set up usury in the negotiation of the notes as a separate defence.

The cause was tried before Oakley, Chief-Justice, and a jury, in October, 1854.

Upon the trial, the plaintiff offered to read in evidence the certificate of a notary, showing the presentment, and demand, and refusal of payment of one of the notes. The counsel for the defendant objected, that the" denial of these facts, in the sworn answer of the defendant, was equivalent to the affidavit required by the act of 1833, and which, when made, precludes the certificate of a notary from being received as evidence. The objection was overruled, and the counsel for the defendant duly excepted.

The certificate was then read, and stated that the notary presented the promissory note in question to the assignee of the makers, at his and their place of business in said city, and demanded of him payment thereof, which he refused. The counsel for the defendant moved that the complaint be dismissed, as to the promissory note in question, on the ground that the certificate of the notary did not show that a sufficient presentment thereof had been made to the makers. The court overruled the motion, and the counsel excepted.

M. Caffee, a witness on the part of the defendant, after having been examined for some time, by the counsel for the defendant, and having answered promptly the questions that were put to Mm, was asked to look, for the purpose of refreshing his memory, at a memorandum, copied by himself from entries, made in the books of Caffee & Cutter by others than himself. The plaintiff objected that the witness ought not to be allowed to look at the memorandum. The objection was sustained, and the defendant excepted.

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Exceptions were also taken, on the trial, to certain parts of the charge of the Judge, but as these exceptions, in the opinion of the court at General Term, all related to questions that had been decided in the prior case of Benedict v. Caffee, ( 5 Duer, 226 ,) it is deemed unnecessary to state them.

The jury found a verdict for $2819.28, for which sum, with interest and costs, the judgment was entered, from which appeal was taken.

W. Bliss, for the defendant, appellant,

argued that not one of the exceptions taken on the trial ought to have been overruled, and that if any one of them was well taken he was entitled to demand a new trial. He cited, among other authorities, Douglas, 496; 8 East. 245; 11 East. 114, and 5 Espinasse, 175. He also insisted that the Chief-Justice erred in refusing permission to the witness Caffee to look, for the purpose of refreshing his memory, at his copy of the entries on the books of Caffee & Cutter, and cited on this point, 2 Selden, 337; 3 Term. R. 49 ; id. 754.

J. Larocque, for the plaintiff, respondent,

insisted that the certificate of the notary was properly admitted in evidence, as the denial, in the answer of the defendant, was not the affidavit that the statute requires; that the certificate was prima, facie sufficient evidence of the presentment of the note to the makers, and their refusal ; as a demand of payment of and the refusal of their assignee was enough, and that it was not necessary .for the notary to certify that the makers were absent when the presentment was made, the legal presumption being that such was the fact. He cited Bell v. Lent, ( 24 Wend. 230 ;) Cayuga Bank v. Hunt, ( 2 Hill, 635 ;) Burbank v. Read, (15 Barbour, 326;) De Wolf v. Murray, (2 Sand. S. C. R. 166,) and some other cases. All the other exceptions, stated in the case, he contended were plainly groundless.

Upon an examination of the case before us, upon this appeal, we are able to find few questions presented for decision which have not been already disposed of in the case of Benedict v. Caffee, et al., heard at the General Term of January, 1856.

We think that all of the questions arising on the charge of the

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Chief-Justice, and the requests of the defendant for other specific instructions, and most of the questions raised by objections to evidence, were either expressly decided in that case or fall within the principles there affirmed, so clearly as to require no extended discussion in this court. The opinion there given may, therefore, be taken as our opinion upon those questions, in support of the rulings of the Chief-Justice herein.

Some two or three questions are, however, suggested, which were not raised upon the other trial. The first arises as follows:

The action is. brought against the defendant as the legal representative of an indorser of two promissory notes, and the complaint avers demand of payment, protest, and notice to the indorser.

The answer, adopting a form of denial authorized by the Code of procedure, says that the defendant has no knowledge or information sufficient to form a belief whether such demand was made and the notes thereupon protested, and notice given to the indorser (the defendant’s testator). The answer is verified in the usual form.

On the trial the certificate of the notary of the presentment, demand, and protest of the notes was offered in evidence by the plaintiff, and it was objected that the denial contained in the verified answer of the defendant was a sufficient affidavit, under the act of 1833, (chap. 271, page 395, § 8,) to preclude the evidence.

That statute, after declaring that the certificate of the notary shall be presumptive evidence of the facts therein contained, adds this proviso: “but this section shall not apply to any case in which the defendant shall annex to his plea an affidavit denying the fact of having received notice of non-acceptance, or of nonpayment of such note or bill.”

When this statute was passed pleadings were not required to be verified, and the act clearly contemplates the annexation to the plea of a separate affidavit, having no connection with the pleadings, as such, specifically denying the receipt of the notice.

If the question raised by the defendant’s objection and exception was an open question in this court, we should feel no hesitation in saying that the ruling on the trial was correct.

The verification of the answer is made for a distinct and different purpose. It applies to modes of expression and forms of denial sufficient for the purposes of the pleading, but in no sense

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satisfying the terms of the statute; and other reasons might be suggested in support of the ruling. But it is unnecessary to pursue the subject, since the point has been already decided in Arnold v. Rock River Railroad Company, et al, (5 Duer’s R., 207), at the General Term of this court, in which it is held that the verification of the answer is not sufficient to satisfy the statute and preclude the giving of the notary’s certificate in evidence.

In the progress of the trial, the defendant, while examining one of his witnesses, (after numerous questions, all of which were answered with great particularity, and without any suggestion or pretehce of want of recollection of any detail or particular called for,) required the witness to look, for the purpose of refreshing his memory, at a memorandum copied by himself, from entries made in certain books of account, at or about the time of the transactions in question, by other persons. The objection of the plaintiff’s counsel to his referring to any such paper, for any such purpose, was sustained, and the defendant excepted. The examination of the witness was continued, and completed, and, though examined at great length, there was no intimation of any failure of memory, to recall each and all of the circumstances inquired of by the defendant’s counsel, and his answers were explicit and positive; nor does it appear that there was any intention to examine him as to any other facts than to those to which he testified. If it were conceded that a copy from entries made by others was no more liable to objection than the original books, and that the fact that the entries were not made by himself did not affect the question, (Huff v. Bennett, 2 Seld. 337,) still we do not perceive the propriety of putting into the hands of a witness a paper, for the purpose of refreshing his recollection, when his memory is already fresh, and his recollection full, on the subject of inquiry. On the contrary, if the witness assumes to know and to remember, and does answer the inquiries proposed, we not only think it unnecessary to refresh his recollection, but that it would be unjust to the adverse party to permit it. An important ground for questioning the credibility of a witness, whether as untruthful or biassed, is often found in his assuming to know and state what he does not know, or to recollect what, from lapse of time or other circumstances, it is in a high degree improbable that he can remem

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ber; and so long as the witness assumes to answer from memory, we think he should be permitted to do so.

If it might be permitted to the examining party, by anticipation, to guard against falsehood, misstatements, or indications of partiality, by showing the paper to the witness on the stand, when he gave no intimation of any want of memory, it would be liable to great abuse, and deprive the adverse party of important means of affecting his credibility.

And though it may be very proper to show such a paper to a witness, for the purpose of enabling him to supply deficiencies in his testimony, or, perhaps, even to correct inaccuracies into which he has fallen, yet where there was (as in this case) no pretence of either, in respect to any matter to which the memorandum related, we think the ruling does not call for any interference with the judgment.

To permit the examining party to place a paper in the hands of. a witness, under the circumstances stated, in anticipation of the contemplated questions, is to suggest to him the answers that are desired, and is open to the strongest objections that can be urged against the allowance of leading questions.

When the witness does not suggest any want of recollection, nor express any desire to refresh his memory, nor manifest by the answers he gives any lack of ability to answer fully and specifically, we cannot think it is error not to permit him to look at a paper, at the solicitation of the counsel.

The remaining question, not covered in terms, nor by obvious inference, by the decision of this court before referred to, is, whether the certificate of the notary, in connection-with the other proofs in the cause, showed a sufficient demand of payment at the maturity of one of the notes ?

As to one of the notes, he certifies that he “ did present the original promissory note hereto annexed, to the assignee of the makers, at his and their place of business in said city, and demanded of him payment thereof, which he refused.”

Although the language of the certificate describes the person of whom the demand was made as the assignee of the makers, which does not very properly define his character or entire relation to them, yet the subsequent proof showed the previous failure of the makers, and the tenor of the objection on the trial, and the argu

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meat of the appeal, proceed upon the evident admission that the person so referred to was the assignee of the property of the insolvent firm. The points and argument of the defendant’s counsel treat him as an assignee for the payment of the debts of the insolvent firm, and, in the words of the points furnished by the defendant’s counsel, as “ standing in the same position as an assignee in bankruptcy.”

If we felt at liberty to. meet the- objection'of the defendant’s counsel in a mode not suggested on the trial, nor urged on the argument of the appeal, we might, perhaps, say that it is very doubtful whether any proof of demand of payment was necessary, by reason of the failure of the defendant to deny the allegation that the notes were duly presented to the makers, and payment demanded and refused.

The Code authorizes an answer containing a general or specific denial of each material allegation. (§ 149.) Under the form of a general denial the answer may deny all the allegations in the complaint in such terms that if any one is true the denial is false; or it may deny specifically such allegations as the defendant intends to controvert on the trial. But it is not clear that any thing in the Code warrants the grouping of several material allegations and denying them as an aggregate in terms which are not inconsistent with the truth of any one of them.

That part of the answer which relates to demand of payment may be stated with an abbreviation not affecting its import, thus: “ That whether or not, at maturity, the said notes were, or either of them was, duly presented to the makers for payment, and payment thereof demanded and refused, and thereupon duly protested, and notice of such presentment, refusal, and protest given to the said Henry Laverty, this defendant has no knowledge or information sufficient to form a belief.” This is only a denial of knowledge sufficient to form a belief whether these facts or allegations in the complaint, taken conjunctively, are true. Had the defendant been answering of his own knowledge and had,'even in absolute terms, denied that the note was presented, and payment demanded and refused, and thereupon was duly protested, and notice of such presentment, refusal and protest given, ect., it might still be true, consistently with such conjunctive denial, that payment of the note was demanded of the makers. A denial that A. and B. and

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C. and D. were present on a certain occasion, is no denial that B. was present, or that A. and B. were present, and so as to either. A denial that A. went to Rome, and to Egypt, and to Jerusalem, and returned from Jerusalem to New York, is not a denial that A. went to Egypt.

The denial in this answer resembles what was known as a negative payment under our former system of pleading, and it is not easy to perceive any reason for- saying, that a form of expression which is not inconsistent with the truth of a specific allegation in the complaint, nor inconsistent with knowledge and belief of such truth in the defendant, may be sustained as a sufficient answer under the section of the Code which prescribes the requisites of an answer. (§ 149.)

If, then, the denial of the conjoined facts be consistent wth the existence and truth of any one of the separate facts, why may not the adverse party say that as to such one fact there is no denial, and it is, therefore, to be deemed admitted under that section of the Code which provides that every material allegation in the complaint, not controverted by the answer as prescribed in § 149, shall be taken as true ?

As this inquiry was not made on the trial, nor on the argument, we might overlook some considerations bearing upon the subject, if we were to answer it in the plaintiff’s favor. We, therefore, recur to the inquiry, whether there was sufficient evidence of a due demand of payment of the note to which this objection relates. Confessedly the demand of payment is certified to have been made at the proper time and at the proper place, the place of business of the makers.

Was it made of the proper person ? In Benedict v. Caffee, above referred to, the court held that a presentment for payment at the place of business of the assignee was not sufficient, it not appearing that it was the place of business of the makers, but, on the contrary, the evidence showing that the makers had ceased to resort to that place.

Now although the makers had failed, and their assignee made their place of business his place of business also, still it was their place of business, and, therefore, the proper place to make presentment. In the case referred to, the opinion of the court in relation to the assignee, holds that he was not as the fesult of tho

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assignment, the general agent of the makers, to transact their business. He had no right to use the proceeds of the assigned property to pay the debts of the makers, except such as were provided for in the assignment, in such order of priority as the assignment prescribed. In virtue of the assignment, then, he had no authority to answer for the makers, or pay the note on their behalf.

If the presentment to him was sufficient, it was because his place of business was the same as that of the makers, and the notary found him there; and, it may be added, that notwithstanding the insolvency of the makers, a demand was not only necessary, but it should be made upon the insolvents personally, (Davy, 515; 8 East. 244; 11 East. 114; Story on Bills, § 346, and cases cited,) of at their residence or place of business, in the same way and manner as if they were not insolvent.

The case, then, is simply this: the notary goes to the place of business of the makers; he finds there a person whose place of business is also there, who assumes to answer, and does answer, by refusing to pay the bill.

It cannot be denied that if the makers were at the time absent from the place of business, the presentment and demand would have been sufficient. The makers were bound to have some person there with funds to pay the note, and the question is thus reduced to the narrow inquiry, will it be presumed in favor of the regularity of the official act of the notary that the makers were absent, or that the assignee was in charge of the place of business ?

In Garnett v. Wandell (1 Starkie, 475) a bill, payable at a banker’s, was presented for payment after banking hours, between seven and eight in the evening, and a boy returned for answer, “No orders.” Lord Ellenborough held the presentment good, though after banking hours; and although there was no other evidence of the boy’s authority, his presence at the office, assuming to answer, was held prima facie sufficient. Lord Ellenborough says, “ The banker returned an answer by the mouth of his servant and non constat, but that he was stationed there for the express purpose.”

In The Cayuga Bank v. Hunt ( 2 Hill, 635 ) where the certificate of the notary was silent in respect to the hour of presentment, it was nevertheless presumed in favor of the due performance of official duty that the presentment was during the proper hours of

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business. The like presumption was held to exist in De Wolf v. Murray, in this court, (2 Sand. 166,) although the certificate stated that the office or place to which the bill was addressed, was closed and no person there to give answer-. To a like effect is Burbank v. Beach, ( 15 Barb. 326 ,) where the certificate not only did not state the time of day, but simply and only that the bill was presented at the office of the acceptors, and payment demanded which was refused.

The certificate of the notary in this case may, when read with the intendment reasonably presumable in favor of the official acts of the notary, be deemed naturally and fairly to import: that he went to the place of business of the makers; that he found there only their assignee; that he made the presentment to him and demanded payment, which was refused. We feel warranted in saying, that the proofs should be deemed to show prima facie a sufficient presentment, and to put the defendant upon proof of facts, if any exist, impeaching its sufficiency.

The judgment must therefore be affirmed, with costs.

Cases cited

Bell v. Lent 24 Wend. 230 N.Y. Sup. Ct. p. 439
Burbank v. Beach 15 Barb. 326 N.Y. Sup. Ct. 1863-06-06 p. 446