Opinion
April, 1905.
R. Neil Burgess, for the appellant.
Robert Forsyth Little, for the respondent.
The action is against Charles M. Reed, the maker, and the appellant as the indorser of a promissory note payable to the order of Costikyan Freres. The complaint alleges that the appellant duly indorsed the note prior to maturity, having received full value therefor, and delivered the same to the payee for full value; that the payee subsequently and before maturity for full value duly indorsed and delivered the note to the plaintiff; that the note was duly presented for payment at the First National Bank of Erie, Penn., where it was made payable, and payment thereof duly demanded and refused, whereupon it was duly protested for non-payment and notice thereof was forthwith duly given to all of the indorsers. The answer of the appellant put in issue, among other things, the allegations of the complaint concerning notice to it of the presentation of the note for payment, the demand and refusal of payment and of the protest. The plaintiff proved the making and indorsement of the note, the delivery to it and offered the note in evidence with the notary's certificate showing that he protested it for non-payment on the 14th day of October, 1901, the day it fell due. For the purpose of proving the service of the notice of protest on the appellant, the plaintiff called one Mairs, who testified that on the 16th day of October, 1901, he served an original notice of protest made by the notary at Erie, Penn., on the fourteenth and addressed, "To American Hotel Victoria Co., S.B.A. Price, Prest.," upon the appellant at the Victoria Hotel, Broadway and Twenty-seventh street, by leaving it "at the cashier's window." He does not show that the cashier or any one else was present or that he drew the attention of any one thereto or that he made any effort to find any officer of the defendant or any one in charge of the hotel to whom to deliver it. The defendant called Mr. Sweeney, who testified that he was elected president of the defendant and purchased its capital stock on the 2d of January, 1901, and continued to be president down to the time of the trial; that he had charge of the management of the business of the appellant and of the hotel during the same period and on the 16th day of October, 1901; that he did not see or receive any notice of the protest or dishonor of the note and the first he knew of the existence of the note or heard of it was when he received a letter from attorneys stating that they had the note for collection and that unless it was paid within a certain time action would be brought thereon. At the close of the evidence counsel for the appellant moved to dismiss the complaint upon the ground, among others, that the plaintiff had failed to prove notice to it of the dishonor of the note. The motion was denied and an exception taken.
We are of opinion that the judgment must be reversed. The appellant is sued solely as indorser of this note. The evidence is wholly insufficient to show the service of the notice of protest upon it. The Negotiable Instruments Law (Laws of 1897, chap. 612, §§ 160, 167, 168) provides that notice of dishonor to charge an indorser may be given by delivering it personally or through the mails either to the party himself or "to his agent in that behalf." This doubtless was not intended to change the rule as it theretofore existed. (Eaton Gilbert Com. Paper, 489.) Where personal service is relied upon, the evidence must show either actual personal service or an ordinarily intelligent, diligent effort to make personal service upon the indorser either at his place of business during business hours, or at his residence if he have no place of business; but if he be absent, it is not necessary to call a second time, and the notice may, in that event, be left with any one found in charge, or if there be no one in charge, or no one there, then the giving of notice is deemed to be waived. ( Stewart v. Eden, 2 Caines, 121; Bank of Commonwealth v. Mudgett, 45 Barb. 663; 44 N.Y. 514; New York Alabama Contracting Company v. Selma Savings Bank, 51 Ala. 305, 306; Allen v. Edmundson, 2 Exch. Rep. 719; Williams v. Bank of U.S., 2 Pet. 96; Huff. Neg. Inst. 47.) The evidence in this case shows that personal service was not made upon any officer of the corporation, and there is no evidence that the notice was left with any agent of the corporation or even where it might be reasonably inferred that an officer or agent of the corporation would receive it. It does not even appear upon what floor or in what part of the hotel the cashier's window was at which the notice was left. There can be no inference from such evidence that the notice was received by the corporation; and the president and manager of the hotel, who was in charge, testifies that it was not brought to his attention.
It follows, therefore, that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
VAN BRUNT, P.J., PATTERSON, INGRAHAM and McLAUGHLIN, JJ., concurred.
Judgment and order reversed, new trial ordered, costs to appellant to abide event.