Seneca County Bank v. . Neass , 3 N.Y. 442 ( 1850 )

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The counsel for the defendant declined to discuss upon the argument, the question made in the court below, in relation to the alledged diversion of the note by the maker from the purposes contemplated by the parties at the time of making and indorsing it. The note seems to have been indorsed for the accommodation of Lee, the maker, without any restriction as to the particular purpose to which it should be applied. The maker had a right therefore to appropriate it to any purpose which he might deem for his own interest, and having appropriated it to the payment of a note held by the plaintiffs against him, the consideration was sufficient to render it valid in their hands.

Neither is there any thing in the point that notice of dishonor was not personally served. Since the act of 1835 it is sufficient, where the indorser does not specify the post office to which he desires the notice to be sent, to direct it to the town in which he resides. (Sess. Laws of 1835, p. 152.) In the case of Downer v. Kerner, (21 Wend. 10,) it was held that such was the rule at common law. The fact that the indorser usually received his letters at the post office in Waterloo, should not alter the rule. Since the act of 1835, the only inquiry incumbent upon the holder to make, is as to the residence of the indorser and when that is ascertained the notice of protest should be directed accordingly. Any rule imposing upon the holder a different obligation would be burdensome and materially affect the circulation of commercial paper. The party is deemed to receive his letters through a post office in the town in which he resides, and if he desires to receive them elsewhere, he should indicate it by affixing the desired direction to his indorsement. It does not appear that the plaintiffs had any knowledge that the defendant usually received his letters at the office in Waterloo, and there is no rule of law which made it necessary for him to inquire.

The only remaining question relates to the sufficiency of the notice of protest. Only one of the objections made at the circuit in that respect was discussed upon the argument, viz. that the certificate of service of notice did not set out a copy of the notice or show its contents.

That is not required in terms by the act of 1833, nor do I find any adjudication requiring it. (Sess. Laws, 1833, p. 395, § 8.) Previous to the passage of that act, the memorandum of a deceased notary was often received as evidence of service of notice, but it was not required in such cases that the memorandum should state the contents of the notice. In Nichols v.Goldsmith, (7 Wend. 160,) there was a memorandum on the back of the note in the hand-writing of the notary who was deceased, in these words: "Noticed indorser by mail, July, 1824," and it was held prima facie sufficient. (See also 20 John. 172; 2Wend. 369, 513.)

The act of 1833 provides that where notice has not been received, the indorser against whom a suit is commenced may accompany his plea with an affidavit that no notice has been received, and in that case the certificate ceases to be any evidence whatever, and under no circumstances is it any more than prima facie evidence. The indorser, therefore, has it in his power, in all cases when insufficient notice has been given, to compel the holder to prove demand and notice by common law evidence. I am, therefore, satisfied that the certificate is not required to set out a copy or the whole contents of the notice. No such practice seems to have been required in any case that has come before the courts. (4 Hill, 236; 7 id. 444; 2 id. 227; 19 Wend. 383; 20 id. 192.)

Judgment affirmed.