Cuming v. Roderick

Appellate Division of the Supreme Court of New York

Cuming v. Roderick

58 N.Y.S. 1093, 42 A.D. 620

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 30, 1899

StatusPublished

Cited by1 cases

This text of 58 N.Y.S. 1093 (Cuming v. Roderick) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cuming v. Roderick, 58 N.Y.S. 1093, 42 A.D. 620 (N.Y. Ct. App. 1899).

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Opinion

McLAUGHLIN, J.

This action was brought to recover the amount of a promissory note made by the defendant Carpenter to the order of the plaintiff, and indorsed before delivery by the defendant Roderick. There have been three trials. On the first trial the complaint was dismissed for insufficiency of proof; but, on appeal from the judgment ■entered on that dismissal, this court held (16 App. Div. 339, 44 N. Y. Supp. 1033) that there was some evidence to go to the jury of the note having been indorsed by Roderick to give Carpenter, the maker, credit with the payee. On the second trial the plaintiff had a verdict; but, on appeal from the judgment entered thereon, this court (28 App. Div. 253, 50 N. Y. Supp. 1053), reversed the same, and ordered a new trial, on the ground that the evidence did not justify a finding that the defendant Roderick was served with notice of protest of the note in the manner required by law, and so as to charge him as indorser. On the third trial the complaint was dismissed, and from the judgment entered the plaintiff has appealed.

The judgment must be affirmed. The case as now presented is substantially the same as the one presented on the last preceding appeal. We then held that the notice of protest was not served in the manner required by law, and was insufficient to charge the indorser. The testimony of the witness Costello, the mail carrier, did not cure the defect there pointed out, and it was insufficient to justify a finding that the notice of protest was in fact received by the [1094]*1094defendant. There were two letter carriers at the time the notice was sent who delivered mail at No. 66 Court street, the place to which the notice was directed, only one of whom was called as a witness. What the other did with mail addressed to defendant at No. 66 Court street was not made to appear. Presumably he left it at that place. The defendant testified that he never received the notice; and, there being no evidence to show that he did, under our former decision (28 App. Div. 253, 50 N. Y. Supp. 1053) the judgment must be affirmed, with costs. All concur, except O’BBIEN, J., dissenting.

O’BBIEN, J. For reasons given in the-dissenting opinion (16 App. Div. 344, 44 N. Y. Supp. 1036), I dissent.

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McLAUGHLIN, J.

This action was brought to recover the amount of a promissory note made by the defendant Carpenter to the order of the plaintiff, and indorsed before delivery by the defendant Roderick. There have been three trials. On the first trial the complaint was dismissed for insufficiency of proof; but, on appeal from the judgment ■entered on that dismissal, this court held (16 App. Div. 339, 44 N. Y. Supp. 1033) that there was some evidence to go to the jury of the note having been indorsed by Roderick to give Carpenter, the maker, credit with the payee. On the second trial the plaintiff had a verdict; but, on appeal from the judgment entered thereon, this court (28 App. Div. 253, 50 N. Y. Supp. 1053), reversed the same, and ordered a new trial, on the ground that the evidence did not justify a finding that the defendant Roderick was served with notice of protest of the note in the manner required by law, and so as to charge him as indorser. On the third trial the complaint was dismissed, and from the judgment entered the plaintiff has appealed.

The judgment must be affirmed. The case as now presented is substantially the same as the one presented on the last preceding appeal. We then held that the notice of protest was not served in the manner required by law, and was insufficient to charge the indorser. The testimony of the witness Costello, the mail carrier, did not cure the defect there pointed out, and it was insufficient to justify a finding that the notice of protest was in fact received by the [1094]*1094defendant. There were two letter carriers at the time the notice was sent who delivered mail at No. 66 Court street, the place to which the notice was directed, only one of whom was called as a witness. What the other did with mail addressed to defendant at No. 66 Court street was not made to appear. Presumably he left it at that place. The defendant testified that he never received the notice; and, there being no evidence to show that he did, under our former decision (28 App. Div. 253, 50 N. Y. Supp. 1053) the judgment must be affirmed, with costs. All concur, except O’BBIEN, J., dissenting.

O’BBIEN, J. For reasons given in the-dissenting opinion (16 App. Div. 344, 44 N. Y. Supp. 1036), I dissent.

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58 N.Y.S. 1093, 42 A.D. 620, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cuming-v-roderick-nyappdiv-1899.

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