Cuyler v. Nellis, 4 Wend. 398

Cuyler v. Nellis

4 Wend. 398 | N.Y. Sup. Ct. | 1830

By the Court,

Savage, Ch. J.

The holder of a bill or note is required to use reasonable diligence in ascertaining the residence of the endorser, and such notice must be given as Will be most likely to reach him. In Miller v. Hackley, (5 Johns. R. 584,) notice by mail, where the parties resided in different places, was held sufficient. The same point was decided in the same way in the supreme court of Massachusetts, in Munn v. Baldwin, (6 Mass. R. 316,) and in that case a doubt is suggested, whether such notice would be good if it should appear that the letter miscarried, though it is intimated that it would be good, and that the miscarriage' would be at the risk of the defendant, the same as if a letter had been sent by his private servant and not delivered to him.

In Ireland v. Kip, (10 Johns. R. 493,) the court said, that putting a notice in the post-office where the parties live in the' same place, though three miles distant, was not sufficient if must be personal or something tantamount •, and see 11 Johns. R. 232, same case, where this rule is laid down: “ If the party to be served by a notice resides in a different place' or city, then the notice may be sent through the post-office# to the post-office nearest the party entitled to notice.”

In The Bank of Utica v. De Mott, (13 Johns. R. 432,) a notice sent to Canandaigua, when the endorser lived at Ovid, was held insufficient. It was shewn that inquiry had been made for the residence of the endorser, and the notary made the direction according to the information received,which, however, was derived from circumstances.- The court say, “ with ordinary diligence the place of his (the defendant’s) abode might have been ascertained, and it must be the plaintiff’s loss, not the defendant’s, that the notice was not given.” The court distinguished that case irons *402Chapman v. Lipscombe, (1 Johns. R. 296,) where the note wag dated in New-York and the defendants resided in Petersburgh, Virginia, and where the notice was' held sufficient, though sent to Norfolk^-ihe holder having used great diligence, and on enquiry at the banks, had been informed that Norfolk was the defendant’s place of residence. In this case the note was dated at Canajoharie, but no inquiry seems to have been made as to the defendant’s residence. In the case of Reid v. Payne, (16 Jonns. R. 218,) the notice was sent to Greenbush after inquiry for the endorser’s residence ; he in fact lived in the adjoining town of Schodack, five miles from the post-office in Greenbush. There were two post-offices in Schodack, and one of them one mile nearer to the defendant than the Greenbush post-office ; but it appeared that the defendant and his neighbors did their business principally at Greenbush, and the post-office, there was more convenient for the defendant than either of the offices in Schodack, and he had sometimes received letters at Greenbush. The court here laid down the principle which governs the rule in these cases. It is to bring the information to the endorser; and therefore in Ireland v. Kip, they said the notice should be sent to the nearest post-office, presuming that the object would be best attained in that manner. But if notice be sent to the post-office where the party usually does his business, it would be good although in a different town. The court held the notice sufficient, because it appeared that the defendant usually received his letters in Greenbush, and it was most convenient for him to do so, and there also the notary directed his notice upon sufficient inquiry

Applying the principles of the preceding cases to this, it follows that the notice was not sufficient. The person giving notice made no inquiry as to the residence of the defendant, or at what post-office he received his letters, or which office was nearest or most convenient.

It appears that the Central post-office was nearest and most convenient to the defendant, and the place where he did his business. The notice should have been sent there.

Motion to set aside nonsuit denied.