Opinion
March 23, 1923.
Cohn, Chormann Franchot [ Basil Robillard of counsel], for the appellant.
Kenefick, Cooke, Mitchell Bass [ Thomas R. Wheeler of counsel], for the respondent.
On October 30, 1919, one Harrah made his note for $3,000, payable to the order of himself on demand, upon which defendant Mather (who is the only defendant answering) and others were indorsers. This note was discounted by the plaintiff which became the holder thereof for value.
In an action against the maker and indorsers it is alleged in the complaint that payments to the amount of $1,200 were made on this note, and that on June 30, 1920, a new note was made by the defendant corporation for $1,800 payable on demand to the order of defendant Mather, and that he with others as indorsers delivered said note to plaintiff, and the prior note was thereupon surrendered by it.
It is alleged that the sum represented as due by one or the other of these two notes has not been paid and that said notes have been duly presented and protested for non-payment and due notice thereof given the defendant. A second cause of action contains similar allegations in respect to a note for $572.85.
The defendant in answering does not deny his indorsement of the $3,000 note, but puts in issue by denial all other material allegations of the complaint. In brief his claim is that his indorsements on the subsequent notes are forgeries.
Defendant now seeks to examine the plaintiff through its managing agent who had charge of the matter, to ascertain among other things when and under what circumstances presentment, protest and notice thereof were made, and to use the deposition so taken on the trial.
It is a vital issue. The note being payable on demand, presentment must be made within a reasonable time after its issue. (Neg. Inst. Law, § 131.) Notice of dishonor, unless waived or excused, must be given to each indorser within the time fixed by statute. (Id. §§ 160, 173, 174, 175, 180.)
On the trial the plaintiff may without calling a witness offer in evidence the certificate of the notary who it is claimed made presentment and protest and gave notice thereof to indorsers, and such certificate is presumptive evidence of the facts certified. (Civ. Prac. Act, § 368; Code Civ. Proc. § 923.) The defendant will then be required to assume the burden of proving the contrary, not by the cross-examination of witnesses called by plaintiff, but by producing affirmative proof.
The truth of the facts contained in the certificate is exclusively within the knowledge of plaintiff. By use of a subpœna the defendant might in time procure the evidence of witnesses. It would be a difficult task, very likely necessitating delay on the trial. All this could be obviated by making the same examination before trial. There seems to be no good reason why these facts should be concealed by the plaintiff pending the trial. The parties should be seeking the truth, not playing a game. If due presentment, protest and notice have made the defendant liable, he is as much entitled to know it now as when the cause is brought to trial.
The motion was denied at Special Term on the ground that permission will not be given a defendant to examine plaintiff as to its cause of action. The defendant seeks more than that. He seeks to obtain facts from the plaintiff that may establish or assist in establishing his defense. Even under the old practice the rule stated was not invariably applied. ( Herbage v. City of Utica, 109 N.Y. 81; Oshinsky v. Gumberg, 188 App. Div. 23. ) Under the new practice (Civ. Prac. Act, § 288) the right to examine an adverse party or witnesses is more freely given, and although the action was brought before the new practice went into effect, the defendant is entitled to the benefit of the remedial provisions of the Civil Practice Act. ( MacDonald v. Wills Co., Ltd., 199 App. Div. 203; Eagle-Picher Lead Co. v. Mansfield Paint Co., Inc., 201 id. 223.) In recent decisions in this court we have departed from the strict rule applied at Special Term. ( Brown v. Brown, 203 App. Div. 658; Harding v. Harding, Id. 721.)
The order appealed from should be reversed, with ten dollars costs, and the order for examination granted, with ten dollars costs.
All concur.
Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs. Order to be settled before SEARS, J., at chambers on two days' notice.