Biber v. Schmidt

Appellate Terms of the Supreme Court of New York

Biber v. Schmidt

31 Misc. 777, 65 N.Y.S. 291

CourtAppellate Terms of the Supreme Court of New York

DecidedJune 15, 1900

StatusPublished

This text of 31 Misc. 777 (Biber v. Schmidt) is published on Counsel Stack Legal Research, covering Appellate Terms of the Supreme Court of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Biber v. Schmidt, 31 Misc. 777, 65 N.Y.S. 291 (N.Y. Ct. App. 1900).

Pincite

Opinion

Per Ouriam.

In order to hold the defendant liable as indorser of the promissory note in suit, it is incumbent upon the plaintiff to show that notice of its dishonor was given to her. The Negotiable Instruments Law, General Laws, chap. L, § 160. The record fails to disclose any proof whatever with respect to this essential fact. The plaintiff insists that such evidence is not required, in view of the provisions of section 923 of the Code of Civil Procedure, which provides that the certificate of the notary public shall be presumptive evidence of the facts certified by him, but the difficulty with this position is that the certificate of the notary in the case at bar merely certifies to the presentment and protest of the note, and is silent as to the service of notice of dishonor. Hence, we cannot indulge in the presumption that such notice was given.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

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

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Per Ouriam.

In order to hold the defendant liable as indorser of the promissory note in suit, it is incumbent upon the plaintiff to show that notice of its dishonor was given to her. The Negotiable Instruments Law, General Laws, chap. L, § 160. The record fails to disclose any proof whatever with respect to this essential fact. The plaintiff insists that such evidence is not required, in view of the provisions of section 923 of the Code of Civil Procedure, which provides that the certificate of the notary public shall be presumptive evidence of the facts certified by him, but the difficulty with this position is that the certificate of the notary in the case at bar merely certifies to the presentment and protest of the note, and is silent as to the service of notice of dishonor. Hence, we cannot indulge in the presumption that such notice was given.

Judgment reversed and a new trial ordered, with costs to the appellant to abide the event.

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

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

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Bluebook (online)

31 Misc. 777, 65 N.Y.S. 291, Counsel Stack Legal Research, https://law.counselstack.com/opinion/biber-v-schmidt-nyappterm-1900.