Patchogue Bank v. Ambrose

278 A.D. 582, 101 N.Y.S.2d 979, 1951 N.Y. App. Div. LEXIS 4023

Opinion

In an action against the indorser of a demand promissory note, judgment for plaintiff reversed on the law and a new trial granted, with costs to abide the event. The note was made August 13, 1947. It was presented for payment on July 8, 1949. Assuming that it was to have been paid at the monthly rate of $236.11, there was default for the first three months of 1948, and payment thereafter of an unexplained large sum in July, 1948, with nothing at all paid thereafter during the period of one year to time of presentment. In the absence of circumstances showing diligence on the part of the holder and a fair opportunity to the indorser to protect himself, and hearing in mind the fact that the burden of showing a reasonable length of time was on the plaintiff, the facts, insofar as disclosed at the trial, do not warrant the conclusion that the note was presented within a reasonable time, within the meaning of section 131 of the Negotiable Instruments Law. The pleadings and the contention of the defendant at the trial show that any technical deficiencies in the certificate of protest were waived. Nolan, P. J., Carswell, Johnston, Wenzel and MacCrate, JJ., concur.