Cohen v. Sovalsky

124 Misc. 368, 208 N.Y.S. 46, 1925 N.Y. Misc. LEXIS 644

• Court: Appellate Terms of the Supreme Court of New York
• Decided: January 8, 1925
• Status: Published

Opinion

Guy, J.:

Action on two promissory notes for $283 made by defendant Sovalsky and indorsed by defendant Brooks. The complaint was amended at the trial so as to specifically allege indorsement by Brooks. The notes matured July ninth and July twenty-third respectively.

Defense, denial; also that indorsement was without recourse against Brooks.

Plaintiff proved execution, indorsement and delivery of notes; also Sovalsky’s refusal to pay them when payment was demanded. But the only proof of protest or notice to Brooks as to $133 note was a parol notice three months after note became due.

Defendant Brooks testified to indorsement of notes; also to alleged agreement that indorsement was without recourse and that he received no notice of protest. Later he testified that in October he was told over the telephone that the notes were unpaid. Sovalsky and another witness corroborated him.

A notary public’s certificate of protest of one of the notes was admitted which lacked a seal.

The jury found a verdict for plaintiffs.

A notary’s written instrument, other than the proof of acknowledgment of a deed or mortgage, is not invalidated by the omission of his seal. It is only when requested that a notary is required to affix his seal to the protest of a note. (Executive Law, § 105, subd. 2.)

The indorser was entitled to notice of protest within a reasonable time after the $133 note matured. A delay from July ninth to October was not within a reasonable time.

Judgment reversed and a new trial ordered, with $30 costs to appellant to abide the event, unless plaintiffs within ten days stipulate to reduce recovery to $150 principal, with interest and costs, and in that event judgment as so modified affirmed, without costs.

All concur; present, Guy, O’Malley and Levy, JJ.