Bartlett v. Robinson — 22 N.Y. Super. Ct. 305

Majority

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Jonas Bartlett et al., Plaintiffs and Appellants, v. Charles Robinson, Defendant and Respondent.

Headnote

Under the act of 1857, (Sess. Laws, Yol. 1, p. 839, § 3,) which provides that a notice of protest for an indorser residing in the same city or town where the note is payable, inay be served by mailing it there, “directed to the indorser, at such city or town,”—a notice to an indorser residing in a large city, directed merely by his name and the name of the city, is not sufficient, where he has added to his indorsement the designation of his street and number. An indorser still has a right to make it a part of his contract-•that the notice shall be sent to a particular place; and where he designates

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a specific address within the city, a notice sent by mail must be addressed accordingly.

(Before Barbour and Monell, J. J.)

Heard April 16, 1862;

decided April 26, 1862.

Appeal from a judgment entered upon the report of H. W. Eobinson, Esq., Eeferee.

The action was by Jonas Bartlett and Addison B. Gates, against the defendant as indorser of a promissory note. The note, which was given in evidence, was indorsed “ Oharles Eobinson, 214 E. 18th St.”' It was dated at Hew York and was payable at the office of Collins & Brown, 96 Broadway. The defendant served with his answer, an affidavit that he had not received any notice of the non-payment and protest of the note. It was proved on the trial, that the notary mailed a notice of the presentment and non-payment of the note to the defendant; that the same was deposited in the post-office in Hew York, directed “Oharles Eobinson, Hew York,” and the postage prepaid thereon.

The Eeferee found these facts, and also that the defendant resided in the City of Hew York. He found as conclusions of law, that the plaintiffs were guilty of negligence in neglecting to cause notice of protest of said note to be directed to the defendant at his residence, Ho. 214 East Eighteenth street, in the City of Hew York; and that the notice directed to him at Hew York, was insufficient to charge the defendant as indorser. The Eeferee directed judgment for the defendant.

The plaintiffs duly excepted to the conclusions of law.

G. Stevenson, for plaintiffs, (appellants,)

insisted that the notice was strictly according to the act of 1857, and that upon no construction of that act could anything more have been required.

W. W. Niles, for defendant, (respondent.)

I. An indorser has a right to designate where notice of protest shall be sent, and the failure to send notice as directed, discharges the indorser.

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The designation of his residence by the street and number, is a direction to have such notice sent to his residence. Morris v Husson, 4 Sandf. R., 93.)

II. Where he resides in a large city, a notice directed to him, generally, at such city, is not good, Avhere the holder has the means of giving more exact directions as to the street and number of the indorser. (Story on Promissory Notes, §§ 345, 346; Chitty on Bills, 4th Am. ed., 474.)

III. This was the rule at common law. The object of the. statute is simply to allow the notice to be mailed through the post-office, instead of being served personally, or being left at the party’s residence, or place of business, as was previously required, and thus assimilate the mode of service to that which prevailed in most other cases. The real question then is, was this so addressed within the 'meaning of the statute, and under the very strict rule requiring all diligence to get the notice to the party ?

IV. In the construction of statutes the object of the change in the law is to be regarded, and no greater change is to be assumed to have been contemplated than was necessary to carry the particular intent into effect. Although this statute provides that the notice may be directed to the drawer and indorser, at such city or town, it does not attempt to prescribe what shall be a sufficient or proper direction to the drawer or indorser, nor to override, or interfere with, any of the requirements of the common law in that respect.

The only question in this case is whether the notice of protest was properly served, so as to charge the indorser.

Formerly, service of notice of protest through the post-office was not allowed in any case, wherever the indorser might reside. (Ransom v. Mack, 2 Hill, 587 .) The rule was subsequently relaxed. When the person to be served resided in a different place from the one where the note was presented, and there was a regular mail communication between the two places, service by post was allowed.

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But the notice was required to be directed to the residence of the indorser. Yet it was sufficient if it was directed to a post-office where he was in the habit of receiving his letters. (Montgomery Co. Bank v. Marsh, 3 Seld., 481.) The Act of 1835, (Sess. Laws, 1835, p. 152,) declared that it was sufficient service if directed to the city or town where the indorser resided, at the time of indorsing, unless at the time of affixing his signature, he should, in addition thereto, specify thereon the post-office to which he might require the notice to be addressed. Under this act, if the indorser specified the post-office to which he desired notice to be sent, it would not be sufficient to charge him if it was sent elsewhere. In so far the former rule was changed. In the absence of any such specification, the notice must be sent to the residence of the indorser, or to the post-office where he usually received his letters, if known to the holder. Where the indorser, however, resided in the same city or town in which the note was payable, it was required that the notice should be served on him personally, or by leaving it at his residence or place of business. (Van Vechten v. Pruyn, 3 Kernan, 549.)

The act of 1857, (Sess. Laws, 1857, vol. I, p. 839, § 3,) provides that where the residence or place of business of the indorser is in the same city or town in which the note may legally be presented for payment, notice of non-payment may be served, by depositing the same, with the postage prepaid thereon, in the post-office in the city or town where such note was presented, directed to the indorser at such city or town. The notary in this case has followed the very letter of the statute, whatever may be its spirit and meaning.

I cannot entertain a doubt that an indorser may make it a part of his contract that notice of the dishonor of the note or bill shall be sent to him at a particular place, and that where he does so, and it is known to the holder, a notice sent elsewhere, would be insufficient. There are many cases in the books where it has been held to be a sufficient service if sent to the place indicated by the

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indorser. (Story on Prom. Notes, § 314; Brent v. Bank of the Metropolis, 1 Peters S. C. R., 89; Morris v. Husson, 4 Sandf., 93 .) And it seems to me to follow that a service thus made is not only sufficient, but that it cannot be made at any other place. If the maker of a note makes it payable at a particular place, it must be presented there for payment, and a presentment elsewhere would not be sufficient. (Story on Prom. Notes, $ 227.)

The object of a notice of dishonor of a note or bill to an indorser, is that he may protect himself from loss, and the law requires the greatest diligence on the part of those who would charge him, that he may receive early notice of the protest. The stringency of the common law rule has, as we have observed, been modified by the two statutes-above referred to; but neither of them has intrenched upon the right of the indorser to require notice to be given to him, at a place designated by himself. The act of 1857 must be regarded of doubtful policy in its application to large and populous cities, where hundreds of the same name are to be found, and where a notice addressed to an indorser at such a city, without any designation of street or number, would hardly reach him. Hence the greater necessity on his part of guarding against a failure to receive his notices, by a designation, under his name, of his street and number. I think he has a right to do so, and to require thereby that his notice shall be addressed to him at such place.

The defendant having done so in this case, the notary should have addressed the notice of protest accordingly.

' His failure to do so discharged the defendant, there being no evidence that he received the notice.

The judgment should be affirmed with costs.