Dunn v. Devlin

2 Daly 122 | New York Court of Common Pleas | 1867

By the Court.—Brady, J.

The defendant Devlin was sued as the indorser of a note made by his codefendant, Smith. His answer denied that he was duly notified of presentation and nonpayment, but there was not annexed to it an affidavit containing such a denial of the receipt of notice, as is required by the statute of 1833, chap. 271, p. 395. The certificate of the notary was, therefore, presumptive evidence of the facts contained in it (Arnold v. Rock Rimer R. R. Co. 5 Duer, 207; Young v. Catlett, 6 Duer, 437). The certificate averred that a notice of presentation and nonpayment was deposited in the post-office, in the city of New York, directed to “Charles Devlin, New York City,” and the postage prepaid thereon. Devlin testified that he had not received such a notice, and the notary, on his examination on behalf of the plain tiff, said, in answer to the question, Did you serve a notice of protest ? “Yes, through the post-office, directed, I think, to Charles Devlin, corner of Fifty-second street and the Second avenue; I would not be positive about that; I have not looked at my books.” It appeared, also, that a memorandum on the notice stated the residence of the defendant Devlin, to be at the place mentioned by the notary, to which the notice was directed, but in whose handwriting the memorandum was made, or by whom, did not appear. The plaintiff testified that it was not in his handwriting, and that he did not know in whose it was. Ho evidence was given on behalf of the plaintiff, showing any effort to discover the defendant Devlin’s place of residence (which was proved to have been on the corner of Fifty-seventh street and the Second avenue), by inquiries or otherwise, but it appeared from an examination of the City Directory, for the year 1863, that Devlin’s name and residence were omitted therefrom. The presiding judge, on this evidence, submitted to the jury the question whéther, under the circumstances, the notice was properly mailed to the defendant Devb'n, and to such submission the counsel for defendant Devlin excepted. The exception was not well taken. The presumptive evidence created by the notarial certificate was not destroyed by the testimony of the defendant Devlin, that he did not receive the notice sent through the post-office. It may be, and must be assumed here to be, that he did not receive it, but that is not at all material. It is sufficient that the service was made in the manner directed by the statute (Laws of 1857-8, p. 839), the defendant Devlin being a resident of the city of New York. If the notary had stated without doubt, on his examination, that he had mailed the notice directed to the defendant Devlin, at the corner of Fifty-second street and the Second avenue, the question presented would be different, and the result, perhaps, more advantageous to the latter. We have held that a notice of protest, directed generally to the indorser, “ New York City,” when he resides there, is sufficient under the provisions of the statute referred to, but it may be thaf where the notary undertakes to give a more specific direction, some proof of diligence to ascertain the indorser’s residence will be necessary to make the service good, if it be correctly addressed. It is not necessary, however, to decide that question in this case. The notary stated that he thought it was directed to the defendant Devlin, at Fifty-second street and the Second avenue, but would not be positive, not having looked at his books; but his certificate, which must be presumed to have been prepared with reference to the information before him, states the direction to have been New York City, and is entitled, therefore, to the paramount consideration. The notary was not certain, when giving his evidence, not having looked at his book, and the truthfulness of Ms certificate was not assailed. If the counsel for the defendant Devlin wished to remove the doubt, he should have called for the production of the boobs. He did not do so. The evidence in the case, for these reasons, established the fact, that the service of the notice of protest was sufficient, and the submission of the question to the jury on that subject was favorable to the defendant Devlin. If the plaintiff had excepted and the jury had found against him, there would have been more value in his objection. The exception considered is the only one properly made to the judge’s charge, the counsel for the defendant Devlin having in all other respects, in a general way, excepted to it. That such an exception need not be considered is a familiar rule. Upon examining the charge, however, it appeal’s that all the questions properly at issue, both by the defendant’s answer and the material evidence, were submitted to the jury, and in as favorable a light for him as the evidence warranted. The whole case was therefore passed upon by the jury, and under instructions to which, save in one respect stated, no exception was taken.

The judgment must, for these reasons, be affirmed.