Albany Trust Co. v. Frothingham

50 Misc. 598, 99 N.Y.S. 343

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 15, 1906
• Status: Published

Opinion

Gildersleeve, J.

The action is against the indorser of a promissory note. The defense is that defendant did not receive notice of protest until many months after such protest and about the time this action was commenced. Judgment was given for plaintiff. Defendant appeals. The maker of the note was defendant’s father, who resided in Albany, where the note was made payable. The plaintiff’s place of business is also located in Albany. Defendant has not lived in Albany for about eight years. For the last six years he has resided in the city of Hew York. The note fell due on July 10, 1905, was protested, and notice of protest was mailed, on the same day, in Albany, to “Walter D. Frothingham, Esq., city.” This was done under the direction of George 0. Van Tuyl, the plaintiff’s secretary. The envelope containing the notice was delivered at the residence of W. Frothingham, defendant’s father, in Albany. He opened the envelope, read the notice, and kept it for several mqjjiths, when he sent it in another envelope by mail to the defendant. He states as his reason for so keeping the notice that “ the note was not to be paid by myself -or my son.” There is no evidence that the defendant had any knowledge of the protest of the note until several months later. The plaintiff’s secretary knew that defendant had formerly lived in Albany and that his father still lived there. He had also occasionally met defendant in Albany since the latter had given up his residence there, but had received no communication from defendant in any way" tending to indicate that defendant’s residence was in Albany during the last eight years. The defendant swears that he met Van Tuyl, the plaintiff’s said secretary, in Albany some time in December, 1904, and told him that he, the defendant, was living in Hew York. The said Van Tuyl does not deny this assertion. Under this evidence it is an established fact in the case that the notice was not sent to the last known address of defendant, and plaintiff should have used reasonable diligence in ascertaining defendant’s New York address, having received actual notice that New York, and not Albany, was the residence of defendant. As the note was protested on July 10, 1905, and defendant did not receive the notice of protest until October, 1905, it cannot be said that he received it within a reasonable time after such protest.

We are of the opinion that the judgment must be reversed and a new. trial granted, with costs to appellant to abide the event.

Dávis and Clinch, JJ., concur.

Judgment reversed and new trial granted, with costs to appellant to abide event.