Majority
p. 653Andrew H. Ward, Jr. plaintiff, vs. James Waterhouse, defendant. (Before Moncrief, Monell and McCunn, JJ.) Heard April 9, 1864.
Headnote
1. Denial by an indorser, in his answer, that he ever received notice of presentment, demand, non-payment and protest of the note sued on, is material; as without proof of such notice to the indorser, the indorsee cannot recover against him. Hence an answer containing such a denial cannot be struck out as false and sham.2. Although a notary may have sent a notice to an indorser, properly addressed, by the proper channel of communication, it does not follow that he can testify . that the indorser actually received the notice.
3. By statute, the certificate of a notary is only made presumptive evidence of some of the facts therein stated, as to presentment and other matters affecting negotiable instruments. The presumption ceases, as to the receipt of notice by the defendant When he positively denies in his answer that he ever received one.
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This was an appeal from an order denying a motion to strike out the defendant’s answer as false and sham. The action was upon a promisssory note against the indorser by the indorsee.
The complaint alleged, among other things, that prior to the maturity of the note, (upon which the action was brought,) and subsequent to the making thereof, the same was indorsed in blank, for a valuable consideration, both by the payee thereof, and by the defendant, and the same was transferred,. so indorsed, to the plaintiff, prior to such maturity, for a valuable consideration; also, “that at the maturity of said note, * * the same was duly presented for payment, and payment of the same was duly demanded, which was refused, and thereupon the same was duly protested for non-payment, of which presentment, demand, non-payment, and protest,, the defendant herein received due notice. The defendant, by answer, controverted each of these averments, in direct and positive terms. It denies that the defendant ever received any consideration for his indorsement,- and alleged that it was made for the accommodation of the maker; also,- that the plaintiff became, or was the owner of the note prior to its maturity, and the plaintiff admitted, in an affidavit made by him, that he became the owner of the note long after its maturity. The defendant also denied in his answer, that he ever '¡received notice of presentment, demand, non-payment and of protest of the note,
J. Cadwallader, for the plaintiff, appellant.
H. L. Clinton, for the defendant, respondent.
By the Court,
Without proof of the presentment, demand, and nonpayment and notice to the defendant, the plaintiff cannot recover against him as the indorsee of the note. ( 4 Denio, 460 .) In Mussina v. Stillman, ( 13 Abb. Pr. 93 ,) it was held that even where it appeared by an answer that many of the denials were only general,, it would not be
p. 655
stricken out as false. It was held, in Bailey v. Lane, (Id. 354,) that the denial by the answer of presentment, demand, protest and notice, was sufficient, and it should stand, The denial in the answer of notice of such steps having been taken, was, therefore, material. The certificate of the notary is made by statute presumptive evidence only of the matters therein stated as to presentment, &c. and the presumption ceases when, as in this answer, the defendant positively denies that he received a notice. It is quite obvious that the notary cannot testify that the defendant received, the notice, although he may have sent it by mail, addressed to the defendant at his place of residence. It is not pretended that the defendant was personally served with a proper notice by the notary. The order refusiúg to strike out the. answer as false and sham, was clearly right, and should be affirmed, with $10 costs, and disbursements for. printing.
Cases cited
- Mussina v. Stillman 13 Abb. Pr. 93 p. 654