Opinion
November Term, 1899.
C.J. Church, for the appellant Kruger.
Norris Morey and Edward R. Bosley, for the respondents.
No brief has been submitted in behalf of the appellant Fredericka Becker. We have looked into the evidence given at the trial and are satisfied that it was sufficient to warrant the trial judge in ordering a verdict against Fredericka Becker, and, therefore, the motion for a new trial made by her upon the minutes was properly denied, and the judgment and order, so far as she is concerned, should be affirmed.
The appellant Kruger raises a question as to whether the evidence was sufficient to show that any notices of protest were served upon Andrew Brown, his agent, and contends that the service of notices of protest upon Brown, if made, was insufficient to charge him as indorser. Brown held a power of attorney from Kruger Co., authorizing him to transact all the business of indorsing and accepting notes and drafts, and the evidence further indicates that he had a general authority from Kruger to negotiate paper to the Bank of Commerce; and that in accordance with his authority he transmitted to that bank numerous pieces of paper, including those in suit, and that the same were discounted at his instance and the proceeds were carried to the credit of Kruger Co., and checked and drawn, from time to time, by Brown, who had general supervision of the business affairs relating to the dealings with the Bank of Commerce. We think notice to Brown was notice to Kruger.
We are also of the opinion that the evidence in respect to the service of notices of protest upon Brown was sufficient to require the submission of the questions, raised by the appellant Kruger in respect thereto, to the jury; and that the jury was warranted in finding, as a question of fact, that the notices of protest of the several pieces of paper were duly served upon Brown, and that by virtue of the service of the notices of protest upon Brown, Kruger became liable.
These questions are more fully considered and discussed in the opinion delivered in the case of Persons v. Kruger (No. 2) ( post, p. 187), heard at this term.
In this case neither Brown nor Kruger was sworn as a witness, and neither filed an affidavit to the effect that no notice was received of the protest and non-payment of the drafts in this suit, pursuant to section 923 of the Code of Civil Procedure.
Following the rule laid down in McLean v. Ryan ( 36 App. Div. 281) and the views expressed in the opinion in Persons v. Kruger (No. 2) ( supra), we are of the opinion that the verdict should be sustained, and that the trial judge was warranted in denying the motion for a new trial on the minutes.
All concurred, SMITH, J., not sitting.
Judgment and orders affirmed, with costs.