Opinion
May, 1909.
Foley Martin, for appellant.
Truax Watson, for respondent.
The defendant is sued as indorser of a promissory note made by one Dempsey and payable to the plaintiff. The note was made and indorsed at New York city and was payable there.
Within ten days after joinder of issue the defendant served on the plaintiff an original affidavit, to the effect that he had not received notice of non-payment of the note. This notice was served pursuant to section 923 of the Code of Civil Procedure.
In view of the service of this notice the burden was upon the plaintiff to prove, by common-law evidence, that the note was presented for payment, that it was not paid, that it had been protested for non-payment and that due notice of protest and non-payment was given to the indorser.
In this case the plaintiff has recovered a judgment, although it failed to prove any one of these essential facts. All the plaintiff did prove was that he received a notice of the non-payment of the note, and that he mailed notice of protest and non-payment to the defendant in "care of Charles Dempsey, No. 1482 Third Avenue, New York City."
Not only did the plaintiff fail to prove that the note was presented for payment, and that it was not paid, and that it had been protested for non-payment; but he offered evidence to show that due notice of protest and non-payment was not given to the indorser.
Section 160 of the Negotiable Instruments Law provides that: "Except as herein otherwise provided, when a negotiable instrument has been dishonored by non-acceptance or non-payment, notice of dishonor must be given to the drawer and to each indorser, and any drawer or indorser to whom such notice is not given is discharged."
Section 179 of the same law provides that: "Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows: 1. Either to the post-office nearest to his place of residence, or to the post-office where he is accustomed to receive his letters; or 2. If he live in one place, and have his place of business in another, notice may be sent to either place; or, 3. If he is sojourning in another place, notice may be sent to the place where he is so sojourning. But where the notice is actually received by the party within the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section."
The defendant did not add his address to his signature upon the note. An agent of the plaintiff testified that he did not know the residence of the defendant, although the evidence shows that the plaintiff did know that the defendant indorsed the note in New York city. The defendant testified that he had been doing business with the plaintiff for fifteen years and that it had frequently corresponded with him at his New York city address. This testimony has not been contradicted.
There is no evidence to show that the plaintiff made any effort to ascertain the defendant's address. The only proof presented is that their agent, not knowing the defendant's address, mailed the notice of protest to the defendant in the care of the maker of the note, addressed to the residence of the maker.
If the plaintiff, after using due diligence, was unable to ascertain the indorser's residence or place of business, I think that, under the circumstances disclosed in this case, the notice would have been sufficient if it had been addressed to the defendant at "New York City." By specifying a particular address which was not the indorser's residence or place of business, the plaintiff released the indorser. University Press v. Williams, 48 A.D. 189; Cuming v. Roderick, 28 id. 253; affd., 167 N.Y. 571.
Merely sending the notice of protest to the indorser in the care of the maker, addressed to the residence of the maker, was not an adequate substitute for compliance with the statute and the requirement that it should use due diligence to ascertain the proper address of the indorser.
The judgment is reversed and a new trial ordered, with costs to the appellant to abide the event.
DAYTON and LEHMAN, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.