McGrath v. Francolini

156 N.Y.S. 980

• Court: New York Supreme Court
• Decided: April 22, 1915
• Status: Published

Opinion

ERLANGER, J.

If the defendant indorser’s liability depended upon facts showing diligence to discover his actual address for the mailing of notice of presentment and nonpayment, I should hold that he was entitled to judgment. It is apparent that very slight inquiry would have disclosed his address if the bank’s agents had resorted to the telephone directory, as it is testified by them that they did, but the measure of duty is defined by the statute (Neg. Inst. Law, § 179, subd. 1), and there was full compliance with the law. This defendant resided in the city of New York, and did not add his street address to his indorsement. Under these circumstances the method of giving notice to him was to be looked-for in the statute, and all necessary steps to charge him as indorser were taken when the notice was mailed to “Emil Mayer, New York City.” Du Pont Co. v. Rooney, 63 Misc. Rep. 344, 346, 117 N. Y. Supp. 220; Ebling Brewing Co. v. Reinheimer, 32 Misc. Rep. 594, 66 N. Y. Supp. 458; Webber v. Gotthold, 8 Misc. Rep. 503, 28 N. Y. Supp. 763. The statute is mandatory. It provides that where the indorser has not added his address to his signature, the notice “must” be sent to the post office nearest to his place of residence or to the post office where he is accustomed to receive his letters. In such a case the burden is on the holder of the note to discover the “place of residence” and to send the notice to the nearest post office. This appears to be the measure of “diligence” required by law,(Cuming v. Roderick, 28 App. Div. 253, 256, 50 N. Y. Supp. 1053), but if the holder goes further and attempts to add a particular address, he takes the risk that the address so chosen may be wrong, in which event the statute gives him uo protection (Du Pont Co. v. Rooney, supra; Cuming v. Roderick, supra). An indorser who has not designated his address at the time of his indorsement cannot justly demand that this additional risk of selecting the correct address be voluntarily assumed by the holder. The statute declares the latter’s duty, while affording the indorser ample means of protection. If he omits to avail himself of that protection, the omission cannot well be remedied by an attempt to enlarge the holder’s duties beyond the plain meaning of the law. Where the notice has been mailed, as required by the statute, thfe liability of the indorser becomes fixed, although the notice may not be received by him. Neg. Inst. Law, § 176.

The plaintiff’s case has been established by acceptable proof of the mailing of notice, addressed to the indorser in form as prescribed by law, and I must hold, therefore, that the plaintiff is entitled to the direction of a verdict as against the defendant Mayer.