89 Misc. 308 | City of New York Municipal Court | 1915
The question submitted for my determination, without a jury, was, in substance, whether the plaintiff bank has sufficiently shown that notice of protest was given to the defendant Berta Breitbart, indorser on a promissory note made and delivered by her husband, or whether she was discharged from liability as such indorser by reason of the bank’s failure to give her such notice. Neg. Inst. Law, § 160. In addition to an answer which put the allegation of notice in issue, the defendant Berta Breitbart served and filed an affidavit (Code Civ. Pro. § 923), denying that she had ever received any notice of the dishonoring of the note, and she reiterated this denial upon the witness-stand. Union Bank of Brooklyn v. Deshel, 139 App. Div. 217. The plaintiff bank claims that it seasonably mailed such notice to the indorser as well as to the maker, and used all diligence in notifying both. Under such circumstances, it contends that the indorser’s actual non-receipt of the notice, if found to be the fact, would be immaterial, in view of the provisions of section 176 of the Negotiable Instruments. Law. State Bank v. Solomon, 84 N. Y. Supp. 976; Feigenspan v. McDonnell, 201 Mass. 341.
Reference to the provisions of that section discloses, however, that its salutary declaration that “ the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails ” is explicitly limited in application to those cases “ where notice of dishonor is duly addressed and deposited in the post-office.” Has the bank proved the mailing of a notice “ duly addressed ” to Berta Breitbart? The notary’s certificate avers such a mailing, but the affidavit of non-receipt (Code Civ. Pro. § 923) destroys even the prima facie force of that certificate and puts the plaintiff to its common-law proof (Dupont Powder Co. v. Rooney, 63 Misc. Rep. 344) of the seasonable mailing of a notice “ duly addressed.”
In determining this question, I have endeavored to make a careful examination of reported decisions in many of the forty-eight states and territories which have adopted the Negotiable Instruments Law, but I find no indication in other commonwealths of views at variance with those deducible from decided cases in this state. I have made this scrutiny of decisions under the parallel sections of the Negotiable Instruments Law in other states, because of the great public importance that this statute “ shall be so interpreted and construed as to effectuate its general purpose to make uniform the laws of those states which enact it. ’ ’ Not only is this rule of interpretation of the so-called “ uniform statutes ” one which should be followed in all good faith by the courts whenever questions of the interpretation of such a statute are presented, but counsel in such cases should feel it as important and necessary to bring to judicial attention the corresponding decisions of sister states as those of the" courts of this jurisdiction. Except where courts of this • state have passed upon the same question, decisions of the courts of other states, interpreting identical'provisions of “ uniform statutes,” should be ac
Judgment may be entered for the defendant Berta Breitbart.
Judgment accordingly.