7 N.Y.3d 481 | NY | 1852
This action was brought against the drawers and endorsers of two promissory notes. They were made by the defendant George P. Loucks and Morgan Gray, by the name of Loucks Gray, and dated Canajoharie, May 2, 1848. One was payable to the order of Peter G. Loucks three months after date at the Montgomery County Bank in Johnstown, for *482 eight hundred dollars, and endorsed by the defendants Peter G. Loucks and Seymour N. Marsh. The other was payable to the order of Peter G. Loucks three months after date at the Bank of the State of New York in New York city, for one thousand dollars, and endorsed by the same defendants. Under the signature of Marsh on the back of the last mentioned note was written "Canajoharie, Mont. co." by the plaintiff's cashier, but there is no evidence that it was done by the direction or even knowledge of Marsh.
Both notes were duly presented for payment at the respective banks where payable, on the fifth day of August 1848, the day of the maturity thereof, and were protested on that day for nonpayment. It was admitted that notices of the nonpayment and protest of the notes were duly served on Peter G. Loucks, and that such notice of the protest of the note for one thousand dollars was served on the defendant Marsh, by putting the same into the postoffice in the city of New York on the fifth day of August 1848, directed to Seymour N. Marsh at Canajoharie, Montgomery county, New York.
It was proved that notice of the nonpayment and protest of the other note was served on Peter G. Loucks by depositing the same in the postoffice at Johnstown on the fifth day of August 1848, directed to Peter G. Loucks at Palatine Bridge, Montgomery county; and that at the same time a like notice of nonpayment and protest was served on Seymour N. Marsh by depositing the same in the postoffice at Johnstown directed to Seymour N. Marsh at Canajoharie, Montgomery county. The evidence shows that prior to November 1847 Marsh resided at Canajoharie, and at that time having a family he moved to Palatine Bridge, directly across the river from Canajoharie, and there has since resided on his farm, and that the cashier of the plaintiff knew that fact. Marsh in 1847 and 1848 was engaged in making and vending trusses. He made them at Cherry Valley and kept his principal office for vending them at Canajoharie, and was in the habit of going to his office nearly every day when at home. There was a postoffice at Palatine Bridge and another at Canajoharie. The former is nearer to the residence *483 of the defendant Marsh by about half of a mile. The mail coming from the east reaches the postoffice at Palatine Bridge first. Marsh in the year 1848 as well as previously, had a letterbox in the postoffice at Canajoharie, to which he was in the habit of resorting almost daily when at home, and received letters at that office and mailed letters there to others during the year 1848. His postage at that office charged to him during the last quarter of that year was $8.05, and nearly or quite that for the preceding quarter. He also did business at the postoffice at Palatine Bridge, to which he resorted two or three times a week himself, and his children were there oftener: when he sent letters from that office he was in the habit of paying the postage at the time. His business there amounted to forty-five or sixty cents for the last quarter of the year 1848. Marsh addressed three letters to the plaintiff's cashier in 1848, in relation to the business of White Marsh, concerning a note of theirs at the plaintiff's bank (White having been former partner in the truss business); they were dated at Canajoharie, May 15, July 6 and July 26, 1848. It was proved by the postmaster at Canajoharie that Marsh, after he moved to Palatine, invariably refused to take notices of protest from that office, which came there addressed to him. It was also proved by a clerk in the post office at Palatine Bridge, that there were a good many letters came to that office addressed to Marsh which he called protests, that he did not take; he took some. James Wells a stockholder in the plaintiff's bank was admitted as a witness on the part of the plaintiff, although objected to on the ground of interest, and gave material evidence. There was an exception taken by the defendants to the ruling of the judge to admit the witness.
The supreme court at special term rendered a judgment upon both notes against all of the defendants, which on appeal to the general term was affirmed. Marsh one of the defendants now appeals to this court. And the first question is, whether the service of the notice of nonpayment of the notes and protest was sufficient to charge Marsh as an endorser. This was a case where notice by mail, if sent, directed to the defendant at the *484 proper place would be sufficient, as the defendant did not reside in the town or place where the notes were payable. It is supposed by the counsel for the defendant that the rule on this subject requires, that the notice when sent by mail to be sufficient, must be sent to a postoffice in the town or village where the endorser resides, unless the endorser has at the time of endorsing specified the post office to which notice is to be addressed. The postoffice at Canajoharie was thus specified on the back of the note for a $1000, payable at the Bank of the State of New York, under the name of the defendant Marsh; but that was done by the cashier of the plaintiff's bank, without the direction or assent of Marsh, and of course can not be allowed to affect him.
The rule of law in respect to the question under consideration was correctly stated by the chancellor in Remer v. Downer (23Wend. 620), that if the drawer of a bill of exchange, or the endorser of a bill or note, does not reside in the town or place where such bill or note is payable, the notice of dishonor may be sent by mail directed to him at the place of his residence, or if he is in the habit of receiving his letters and papers through the postoffice in an adjoining town, the notice may be directed to him at either place (Reid v. Payne, 16 Johns. 218;Bank of Geneva v. Howlett, 4 Wend. 328; Downer v.Remer, 21 Wend. 10, where the rule is stated by Judge Bronson; Seneca County Bank v. Neass, 3 Comstock, 442).
This rule must be understood however, not to apply to a case where the drawer or endorser of a bill or an endorser of a promissory note, c., at the time of affixing his signature as drawer or endorser, has specified therein the postoffice to which the notice is to be addressed (Laws of 1835, chap. 141). It follows that the notices of protest sent by the mail addressed to the dofendant Marsh, at Canajoharie, were sufficient to charge him as endorser of the notes, although he at the time the notes were made and endorsed and at the time they became payable resided in Palatine; because it appears that he was in the habit of receiving his letters to a considerable extent at the postoffice in Canajoharie, to which for that purpose he was in the habit of resorting almost daily when at home. The evidence shows *485 that he kept a letterbox at that postoffice and received most of his letters at that office during the summer and fall of 1848, although he received some at the postoffice in the town in which he resided. In addition to that it was shown that he dated three of his letters, directed to the plaintiff's cashier, in May and July of that year, at Canajoharie. The remaining question arises upon the exception taken to the decision of the judge admitting James Wells as a witness for the plaintiff, notwithstanding he was a stockholder in the bank at the time. The 398th section of the code declares that no person offered as a witness shall be excluded by reason of his interest in the event of the action, and section 399 provides that the last section shall not apply to a party to the action nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignee of a thing in action assigned for the purpose of making him a witness. Wells though a stockholder in the plaintiff's bank is not aparty to the action, nor a person for whose immediate benefit it is prosecuted within the meaning of section 399, and was therefore a competent witness in favor of the bank (Pack v.The Mayor of N.Y. 3 Comstock, 489, 493; Washington Bank v.Palmer, 2 Sand. S.C. Rep. 686; N.Y. and Erie R.R. Co. v.Cook, id. 732). The judgment should be affirmed with costs.
WATSON, J., delivered a written opinion in which he arrived at the same conclusions with Judge Jewett.
Judgment affirmed. *486
