Solomon v. Cohen

94 N.Y.S. 502

• Court: Appellate Terms of the Supreme Court of New York
• Decided: June 22, 1905
• Status: Published

Opinion

SCOTT, P. J.

This is an action by the holder of a promissory note against an indorser. The defendant denies his signature, but the justice found against him, and with that finding we find no occasion to differ.

There is, however, an insuperable objection to a recovery by plaintiff, and this is found in the failure of plaintiff to show that timely notice of dishonor was given to the appellant. The only evidence that notice of dishonor was given to defendant is that of the plaintiff, who says that he notified appellant that the note had not been paid “two or three days after it was due.” This was too late. Section 174, Negotiable Instrument Law, Laws 1897, p. 741, c. 612. It is true that the appellant did not file the affidavit provided for by section 923, Code Civ. Proc. The only effect of the failure to serve such an affidavit is that the notary’s certificate of presentment, nonpayment, and of the service of notice thereof becomes presumptive evidence of the matters therein stated. If, therefore, the notary’s certificate had contained a statement of timely service of notice of nonpayment upon appellant, it would have served to prove presumptively such service. The certificate, however, contains no statement that notice of dishonor was given or sent to appellant. It merely certifies to the presentation of the note at the maker’s place of business and its nonpayment. There is therefore no evidence in the case of notice to the appellant, except the plaintiff’s testimony as to the notice he gave, and that was too late.

Judgment reversed, and new trial granted, with costs to appellant to abide the event. All concur.