Hyman Goldman Plumbing & Heating Corp. v. Nesbit

149 Misc. 606, 267 N.Y.S. 889, 1933 N.Y. Misc. LEXIS 1733

• Court: Appellate Terms of the Supreme Court of New York
• Decided: November 9, 1933
• Status: Published

Opinion

Per Curiam.

The point about bias of the court is wholly unjustified and is stricken from the brief. There was a consideration for the note, and the evidence that the note was not given for the accommodation of plaintiff is overwhelming. There was no error in rulings on evidence. When an affidavit of non-receipt of notice of presentment and dishonor is filed by an indorser, the certificate of protest is not admissible under section 368 of the Civil Practice Act, but if it is kept as a bank record it would appear admissible under section 374-a of the Civil Practice Act. It then becomes some evidence of the facts stated therein. But when, as here, the notary who made it, testifies that he did not personally present the note, the certificate that the note was presented is hearsay and without probative force. Whether notice was given is, therefore, in this case academic, because notice of something proved not to have occurred is futile.

Judgment reversed and new trial ordered, with thirty dollars costs to appellants to abide the event.

All concur; present, Lydon, Levy and Callahan, JJ.