Downer v. Remer

21 Wend. 10 | N.Y. Sup. Ct. | 1839

By the Court,

Bronson, J.

The statute declaring a notice of non-payment sufficient, directed to a city or town where the person sought to be charged by such notice resided at the time of drawing, making or endorsing a bill of exchange or promissory note, Statutes, sess. of 1835, p. 152, being passed after the making of this note, cannot aid the plaintiff on the question whether the notice of non-payment was properly directed.

Notice of the dishonor of a bill or note should be so given that it will be likely to reach the drawer or endorser without delay. Where the parties reside in different towns, the notice may be sent by mail ; and then it should be directed to a post office in the town where the drawer or endorser resides, or to some other post office where he usually receives his letters. If there be more than one post office in the town where the drawer or endorser resides, the notice should be directed to that nearest his residence, unless he usually resorts to another. Cuyler v. Nellis, 4 Wendell, 398, and the cases there cited.

In this case, the notice would have been good had it been directed to Penn Nan, where the defendant usually received his letters, or to Benton Centre, the office nearest to him in the town where he lived. But it was directed to Benton, an office to which the defendant did not resort, and which was the most distant from him of any of the three offices in the town. Still the notice would have been sufficient, if, after diligent inquiry, it had been directed according to the best information that could be obtained. Chapman v. Lipscombe, 1 Johns. R. 294. Bank of Utica v. Davidson, 5 Wendell, 587. Catskill Bank v. Stall, 15 id. 364. But there was no proof that any diligence whatever had been used. The words “Benton, Yates county,” were written under the defendant’s name after he had endorsed the note ; but when, or by whom it was done, did not appear; and there was no evidence that the person who left the note for collection, or the bank officers, made any inquiry for the purpose of ascertaining the proper direction to be given to the notice, or that they acted on any information that had been previously acquired. For aught that appears, the person who directed the notice may have known that there were three post offices in the town of Benton, and that the notice was sent to the office most remote from the residence of the endorser. He may also have known that the endorser usually received his letters at the Penn Nan office.

Where there are several post offices in the same town, I think the holder should not be held to very strict proof in excusing a misdirection of the notice; but I am unable, especially since the case of Cuyler v. Nellis, 4 Wendell, 398, to say that no diligence whatever should be required. But my brethren are of a different opinion. They say that the case of Cuyler v. Nellis has not been followed—that it is enough to send notice to the town where the drawer or endorser lives, unless it appear that the holder knew that the notice should have been directed in a different manner. The objection that the notice was misdirected is consequently overruled.

The note with the interest added was misdescribed by mistake in the notice of protest, as amounting to $999,52, instead of $599,52: but in all other respects it was accurately described, and it was the only note in the bank with the defendant’s name upon it. The jury were well warranted in finding that the defendant was not misled by the error, and if not misled the notice was sufficient. Bank of Rochester v. Gould,9 Wendell, 279. Smith v. Whiting, 12 Mass. R. 6. Chitty, jun. on Bills, 71.

New trial denied.