Warnick v. Crane

4 Denio 460 | N.Y. Sup. Ct. | 1847

By the Court, Beardsley, J.

The defendant could only be charged as endorser of the note by proving that it had been presented for payment at the proper time and place, and payment refused, and that he had due notice of these facts. No evidence but the notarial certificate was given to show that this note had been presented for payment; and the certificate in this respect is defective. It merely states that the notary caused the note to be presented for payment, which was refused. This certificate plainly imports that the presentation was not by the notary, but was by some one else acting for him, and under his authority and direction. But the statute does not make such a certificate evidence. It must, in order to satisfy the statute, show a presentation by the notary himself. (Laws of 1833, ch. 271, § 8.) This mode of proof is in derogation of the common law: and it must appear that the statute has, in all respects, been complied with. The defect stated is fatal. The judgments of the C. P. and of the justice must be reversed.

Judgments reversed.