Morris v. Husson — 6 N.Y. Super. Ct. 93

Majority

p. 93

Morris v. Husson.

Headnote

The defendant was the indorser of a promissory note. Annexed to his indorsement, he had written “13 Chambers-street.” At the time of the indorsement, and the subsequent dishonor of the note, he had an office in the city of New' York, where he transacted his business, and received his letters, but his residence, as also the maker’s, was in Brooklyn. The note had been deposited by the holder, in a bank at Brooklyn for collection, and upon its dishonor, a notice of protest was put in the post-'office at Brooklyn by a clerk of the bank, acting for the notary, directed to the defendant, “ 13 Cliambers-st., New York.” In an action against the defendant, held, that,the service of notice was sufficient.

Held also, that the addition of “ 13 Chambers-street,” to the indorsement, must be regarded as a direction as to the place where notice was to be sent in case of the dishonor of the note, and that the service of notice was therefore in compliance with the directions of the indorser.

Notice of protest sent to the post-office, where the indorser usually receives his

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letters, although in a different town from that in which he may reside, ia a valid and sufficient service.

In an action by the indorsee of a promissory note against the indorser, service of notice of protest upon the indorser is not excused by showing that the indorser and maker had been partners in business, and the note was given for a partnership debt.

(Before Duer, Mason, and Campbell, J. J.)

June 4;

June 22, 1850.

Motion to set aside the report of a referee, in an action brought to recover the amount of a promissory noté indorsed by the defendant. . The note was as follows :

“ Brooklyn, May 5, 1846.

“ Four months after date, I promise to pay to the order of Joseph Husson four hundred and fifteen T2^ dollars, for value received. Edward Lynch.”

Indorsed: “ Joseph Husson, 13 Chambersrstreet.”

Upon the trial, after proof of the indorsement of the note by the defendant, the plaintiff’s counsel called as a witness, a clerk in the Long Island Bank, (of Brooklyn,) where the note had been deposited for collection, who testified, that on the day the note matured; which was September 11th, 1846, he presented the same and demanded payment, at the residence of the maker in Brooklyn, and payment was refused; that on the same evening he deposited a notice of protest, in the usual form, in the post-office of Brooklyn, directed to the defendant at “No. 13 Chambers-street, New York city.” The notice was signed with the name of Benjamin D. Silliman as notary public of the Long Island Bank.

It appeared in the cross-examination, that the witness was not a notary public, but was' in the habit of protesting notes and serving notices of .protest at the request of Mr. Silliman, the notary, and that he had protested the note in suit, and served the notice of protest, at his request; that he did not know the reputed place of residence of the defendant,- and was guided by the indorsement upon the note in the service of notice. He

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knew some years before that the defendant lived in-Brooklyn, and had ’never-heard of -his-removing from that city. After proof of the amount of interest, the plaintiff .rested.

It appeared in evidence, on the part of the .defendant, that the defendant has resided in Brooklyn for a number of years, and resided there at the time of the protest of the note in suit; but that he carried on business in New York, and received-his letters - at the post-office -in that city. It- also .appeared that at that time his office, was at .75 Nassau-street, although formerly it was at 13 Chambers-street. ■ The defendant rested.

The plaintiff, then-proved, that in the fall of 1845 the defendant and Edward Lynch,-the maker'of the note, became partners in the carrying on of a distillery, and continued to be partners until January, 1846; and. that in the Course-of that,business, they were in the habit of giving notes made by Lynch and indorsed by the defendant; that the note ‘in suit was given for materials and labor furnished during the partnership, towards the erection of the distillery. This evidence was objected to by-defendant’s counsel.

The' plaintiff again rested his.case; when the defendant’s coun-sel called-Mr.. Clarkson, who testified that- he- occupied an office with the defendant -in September,.1846; that on-the - 26th of that month he called-at the.New York post-office, at.defendant’s-request, for an advertised letter-directed to him,-which defendant had pointed'out to him in a-list1- of advertised letters in a paper of • that date, -and witness then received .the notice of pro- ■ test of the -note-in suit, which he delivered:to .'the defendant. Mr. Clarkson proved -that the: defendant carried eon business, when the note; was- given and: protested,.:.in-the-city of New York,-and received his -.letters from- the post-office-in that city. In 1845 his: office was -at 43 Chambers-street. ■ The: testimony here closed, and the referee reported-in favor .of- the: plaintiff

T. Brady, fox the defendant,

cited Seabury v. Hungerford, 2 Hill, 80 ; Story on Prom. Notes, § 301, and § 297; 10 Wend. 116 ; 18 John. 230 , 240; Burke v. McKay, 2 Howard S. Ct. R. 66; 2 R. S. 212, §§ 44, 45. 46; Onondaga County Bank v.

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Bates, 3 Hill, 53 ; Sheldon v. Benham, 4 Hill, 129 ; Lowrey v. Scott, 24 Wend. 358 ; Ransom v. Mack, 2 Hill, 591 ; Spencer v. Bank of Salina, 3 Ib. 522; Cayuga County Bank v. Bennett, 5 Hill, 241 ; Story, § 322, 350; Commercial Bank of Erie v. Norton, 1 Hill, 501 ; National Bank v. Norton, 1 Hill, 577 ; Prosser v. Luqueer, 4 Hill, 420 ; Hall v. Newcomb, 7 Hill, 416 .

A. Schell, for the plaintiff,

cited Cowperthwaite v. Sheffield, 1 Sand. Sup. Ct. Rep, 416; Coddington v. Davis, 1 Comstock Rep. 186; Bank of Utica v. Smith, 18 John. R. 229; Hartford Bank v. Stedman, 3 Conn. R. 489; Sheldon v. Benham, 4 Hill, 129 ; Ransom v. Mack, 2 Hill, 587 ; Bank of Geneva v. Howlett, 4 Wend. 330 ; Howard, Pres't v. Ives, 1 Hill, 263 ; Dobree v. Eastwood, 3 Carr & Payne, 250; Commercial Bank v. Hughes, 17 Wend. 94 .

By the Court.

The notice of protest of the note was sufficient, we think, in this ease, to bind the indorser. Although his residence was in Brooklyn, yet his place of business was in the city of New York; and it is also in evidence that he received his letters from the post-office in New York. It has been held, and we think correctly, that notice of protest of a note should be sent to the post-office where the indorser usually receives his letters, although in a different town from that in which he resides. (Ransom v. Mack, 2 Hill, 591 .) The object of giving notice is to apprise the party of the'fact as soon as possible, and an indorser would have just reason to complain if he should be held by a notice directed to a post-office to which he is not in the habit of resorting, though in the same town where he resides, instead of the place from which it is known that he receives his letters, but which is out of the geographical bounds of the township in which he resides. Besides, the addition by the defendant of the words “13 Chambers-street,” beneath his indorsement, could have no other meaning than a direction as to the place where notice should be sent in case of the dishonor of the note, and the notice put in the post-office addressed to him, as was the notice in this case, to No. 13

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Chambers-street, was given strictly in compliance with his directions.

The referee erred in admitting proof of the original consideration of the note, for the purpose of rendering the defendants liable as partners. (National Bank v. Norton, 1 Hill, 577 .) The plaintiff, who was a mere indorser of the note, could not sue on the original consideration.

Yet as the defendant Husson was liable as indorser, the report of the referee was right and must be confirmed.

Cases cited

Merritt & Myers v. Benton 10 Wend. 116 N.Y. Sup. Ct. p. 95
Commercial Bank v. Hughes 17 Wend. 94 N.Y. Sup. Ct. p. 96