Gawtry v. Doane

48 Barb. 148, 1866 N.Y. App. Div. LEXIS 176

Opinion

By the Court, Ingraham, J.

The notarial certificate of protest was properly received in evidence. The defendant did not annex to his answer the affidavit required by statute,

Footnotes

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(a) and the notarial certificate became presumptive evidence of the facts stated therein. (Lansing v. Coley, 13 Abb. Pr. 272.) The defendant then was at liberty to contradict the presumption arising from the certificate, by showing that it was untrue. This he attempts to do by proving that the demand of payment was not made by the notary, but that the certificate was founded on an entry made by his clerk. When such a mode is resorted to, for protesting a note, the act of the clerk is not the act of the notary, but may be proven as the act of an individual, and becomes subject to the ordinary rules of evidence, (Onondaga County Bank v. Bates, 3 Hill, 53 ;) where Nelson, Ch. J. denied the authority of the notary to give the certificate on the acts of a clerk, and sustained the rejection of it as evidence.

This renders it necessary that there should be evidence of the acts of the clerk ; and the plaintiff offered the entry of the clerk in evidence, after proof of his death. In Nichols & Luce v. Goldsmith, (7 Wend. 160,) it was held that the memorandum of a deceased cashier who notified indorsers in the name of a notary, was sufficient evidence to charge the indorser. ( Welsh v. Barrett, 15 Mass. R. 380. Halliday v. Martinet, 20 John. 172.) This entry of the deceased clerk was properly admitted. *

The plaintiff relies, also, upon the acceptance by the defendant, from the maker of the note, of a judgment to secure them for this note and others for which Doane was said to be liable. In the suit of Clark & West v. Doane and others,

[New York General Term, November 5, 1866.

brought to set aside such judgment, Doane put in an answer, alleging that he was liable on the note, as indorser, and claiming to maintain his judgment on that ground. The evidence was submitted to the jury to show that Doane was liable as indorser. It has been held that taking security from the maker operates as a waiver of demand and notice, when taken before maturity of the paper. (Otsego County Bank v. Warren, 18 Barb. 290.) Also, that taking an assignment of all the property of the debtor renders demand and notice unnecessary. (Seacord v. Miller, 13 N. Y. Rep. 55.) This point was examined by Bacon, J. in The Otsego County Bank v. Warren, supra, and he held “ If there has been no due presentment, or notice of dishonor, and the indorser, after the maturity of the note, supposing himself liable to pay the same,’ takes security from the maker, that will not amount to a waiver of the objection of want of due presentment and notice,” citing Bond v. Farnham, (5 Mass. R. 170 ;) Tower v. Durell, 9 id. 332;) Richter v. Selignan, (8 S. & R. 425 ;) Story on Prom. Notes, (§§ 278, 282.) I am inclined to concur in this ruling. An admission of liability, by an indorser, after maturity, is never held to be sufficient to overcome the want of demand and notice, without proof that at the time of the admission the indorser knew that there was such defective protest. In the present case there was no proof of • such knowledge. But, although it would not have been sufficient to establish such liability, it was admissible as evidence in connection' with the other proof, to be submitted to the jury upon the question of notice.

The judgment should be affirmed.

George G. Barnard, Clerlti and Ingraham, Justices.]

s) By the Revised Statutes, (3 R. S. 5th ed. 474, § 35,) it is provided that the certificate of a notary of the presentment of any note for payment, and of any protest of such note for non-payment, and of the service of notice thereof on jny or all of the parties to such hill or note, shall be presumptive evidence of the facts contained in such certificate. But this section does not apply to a case where the defendant annexes to his answer an affidavit denying the fact of having received notice of non-acceptance or of non-payment.