72 N.Y.S. 691 | N.Y. App. Div. | 1901
This action was commenced January 31, 1900, to recover, upon a promissory note of $3,000 given by the Mount Vernon Consumers’ Brewing Company, a domestic corporation of the city of New York, and dated December 9,. 1899, due forty-five days from its date to the order of Schaefer & Brother, and payable at the Nineteenth Ward Bank of New York city. The signature of the brewing company was attested by John A. Schappert, its president, and by O. A. Schaefer, its secretary and treasurer. The note was indorsed by the defendants Schappert and Engel at the instance of an officer of the brewing company, of which both indorsers were officers. The payees, Who had a place o.f business in Buffalo, indorsed the. note and sold it to the plaintiff before maturity for a valuable consideration and in the usual course of business. The note was not'paid at maturity, was presented for payment, which was réfused, and thereupon protested for non-payment, and two of the indorsers defend-
It is contended that the note had no legal inception, but was diverted and put into circulation? contrary to the purpose which induced its creation. There are.several barriers to.this contention: (1) The answer contains no such defense. (2)- While the defendañts testified the note was given to discharge a precedent debt, which in fact had, been paid, yet the proof is far from convincing as to the manner, in which this payment was made. But passing that question, there is no proof that the payees were cognizant that the nóte was designed for a specific use. It was presented to the defendants for indorsement by the bookkeeper of, the maker, and after their indorsements was taken back to the Office by this clerk, and no restriction as to its use appears to have been given to the bookkeeper or to any officer of the brewing company, or to Schaefer & Brother, Schappert had signed the .note on its face, officially vouching for
It is urged that the note was not properly presented or protested to bind these defendants. On January 8,1900, the plaintiff indorsed the said note, “ Pay to J. F. Thompson, cashier, or Order, Metropolitan Bank, Buffalo, N. Y., Jacob Dilcher, Cashier ” (said Thompson was cashier of the Seaboard National Bank of-New York), and sent the same to the latter, its New York correspondent, for collection, although the indorsement in terms was not so restricted. The note became due on the nineteenth, and on the afternoon of that day a messenger of the Seaboard Bank presented it for payment to the Nineteenth Ward Bank, where it was made payable, and payment was refused because of insufficient funds to meet it. During the afternoon of that day the note was delivered to the notary, who attended to protesting notes on behalf of the Seaboard Bank, ánd notices of protest were prepared by him for each indorser, and they were all mailed to the plaintiff late that evening, who appeared as last indorser upon the note. The succeeding day was Saturday, and as the plaintiff is closed on Saturday afternoons the notices Were not received until Monday morning at the bank. The officers of the bank did not know the address of either of the defendants or the New York address of Schaefer & Brother, but did know the place of business of the latter in the city of Buffalo. The notices were immediately mailed to this address and received about noon of the same day. The accountant of that firm at once inclosed the notices of protest in an envelope directed to Mr. Schaefer at his New York address with a letter requesting him to forward the notices contained in the envelope to the proper parties. This letter, with the inclosures, was received by Mr. Schaefer in the afternoon of January
To summarize our disposition of the material questions raised by the defendants’ counsel we are satisfied (1) that the plaintiff is a bonafide holder of the nóte; (2) that the defendants are liable to the payees as well as to all subsequent parties to the note. (Neg. Inst. Law, § 114, subd. 1.) The payees were accordingly the agents of the defendants to -negotiate the note, and the allegation in the complaint that it was delivered to the plaintiff by the defendant Engel is strictly correct according to the face of the paper and the tenor of the indorsements. (3) The fact .that the note was presented for payment by the notary to the bank where payable after it had closed, it being in the evening, is unimportant. The note had, during banking hours of the day it -matured) been duly presented for payment at that bank and payment refused, thus complying fully with the Negotiable Instruments Law, sections 131 and 135. (4) The plaintiff being the last indorser on the note, and the notary not knowing the address of any of the other indorsers, very properly mailed all the notices to the plaintiff , thus shouldering the responsibility upon the bank to protect itself by sending manifests of protest to the prior indorsers, which it did. (5). Even if the plaintiff was not in fact air indorser, neither defendant had given his address upon the note, and the notary not knowing it might well assume that the indorsers all resided in Buffalo, and so mailed them to the party who would be most likely to notify them. The object of the requirement as to giving notice is to insure to. the indorsers prompt and timely information of the default of their principal, and the course adopted by the notary was: effective to cany out that purpose. There is a legion of other, exceptions which we do not regard of sufficient moment to call for- independent discussion.
All concurred,- except Rumsey, J., not sitting.
Defendants’ exceptions overruled, motion denied and judgment ordered for the plaintiff on the verdict, with costs.