University Press, John Wilson & Son, Inc. v. Williams

New York Supreme Court

University Press, John Wilson & Son, Inc. v. Williams

28 Misc. 52, 59 N.Y.S. 817

DecidedJune 15, 1899

StatusPublished

This text of 28 Misc. 52 (University Press, John Wilson & Son, Inc. v. Williams) is published on Counsel Stack Legal Research, covering New York Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

University Press, John Wilson & Son, Inc. v. Williams, 28 Misc. 52, 59 N.Y.S. 817 (N.Y. Super. Ct. 1899).

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Opinion

McAdam, J.

The action is to charge the defendant as indorser of two promissory notes, and the defense is want of notice of dishonor. The protests having been made prior to the present' “ Negotiable Instruments Law,” which went into effect October 1, 1897, the questions concerning demand and notice must be decided without regard to that enactment. The notes were made and indorsed at New York city, and were payable there. The defendant claims that at the time the notes were protested he resided at Washington, D. 0., but he failed to put that address on the notes, and did not in any manner indicate thereon any place where notices of protest were to be sent. The plaintiff did not know that the defendant resided at Washington, and the latter took no pains to inform the plaintiff thereof, and notices were sent to the best [53]*53address the plaintiff’s officers conld obtain. They could do no more. In this instance the demand of payment and notice of dishonor must be made and given according to the laws of the state of Hew York. In order to charge an indorser, it is not necessary that he should actually receive the notice of protest. It is sufficient that such notice has been properly served according to some legal method. Requa v. Collins, 51 N. Y. 147. The rule is that “ when the residence ” (of the indorser) “ is unknown, then diligence in the endeavor to find the person, or to learn his residence or place of business, is deemed all that is reasonable to require, and that shall stand as in the place of notice.” Bartlett v. Robinson, 39 N. Y. 181; Requa v. Collins, supra. One test of diligence is that each indorser on receiving notice of protest in due course must be prompt to transmit the notice to his prior indorser, and this procedure was followed here. Mead v. Engs, 5 Cow. 303 ; West River Bank v. Taylor, 34 N. Y. 133; Farmers’ Bank v. Vail, 21 id. 485. It also appears in the case, without contradiction, that “ Stone & Kimball,” a corporation, the maker of the notes, failed before their maturity; that Mr. White, the treasurer of the plaintiff, had a conversation with the defendant and Mr. Whit-ford,' his attorney, in reference to said notes, at the office of the Stone & Kimball Co., and that both then and there assured Mr. White that he need not be worried about the failure, as these notes would be paid by Mr. Williams, the defendant, who was abundantly able to meet them. This was practically an unconditional assumption of the debt of the defendant, who, knowing the maker could not meet the notes at maturity, asserted both his intention and ability to do so. See Sheldon v. Horton, 43 N. Y. 93, and kindred cases. It further appears that the defendant secured himself against loss by judgments recovered against the Stone & Kimball Co., before the notes in suit became due. It would look like departing from the course of justice to hold that the defendant, on what now seems to be a technicality, must be discharged from liability under such circumstances. Upon the entire case it can be held without violating any settled principle of law, that there is sufficient evidence of diligence on the part of the plaintiff to charge the indorser and authorize the judgment plaintiff demands.

Judgment for plaintiff.

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McAdam, J.

The action is to charge the defendant as indorser of two promissory notes, and the defense is want of notice of dishonor. The protests having been made prior to the present' “ Negotiable Instruments Law,” which went into effect October 1, 1897, the questions concerning demand and notice must be decided without regard to that enactment. The notes were made and indorsed at New York city, and were payable there. The defendant claims that at the time the notes were protested he resided at Washington, D. 0., but he failed to put that address on the notes, and did not in any manner indicate thereon any place where notices of protest were to be sent. The plaintiff did not know that the defendant resided at Washington, and the latter took no pains to inform the plaintiff thereof, and notices were sent to the best [53]*53address the plaintiff’s officers conld obtain. They could do no more. In this instance the demand of payment and notice of dishonor must be made and given according to the laws of the state of Hew York. In order to charge an indorser, it is not necessary that he should actually receive the notice of protest. It is sufficient that such notice has been properly served according to some legal method. Requa v. Collins, 51 N. Y. 147. The rule is that “ when the residence ” (of the indorser) “ is unknown, then diligence in the endeavor to find the person, or to learn his residence or place of business, is deemed all that is reasonable to require, and that shall stand as in the place of notice.” Bartlett v. Robinson, 39 N. Y. 181; Requa v. Collins, supra. One test of diligence is that each indorser on receiving notice of protest in due course must be prompt to transmit the notice to his prior indorser, and this procedure was followed here. Mead v. Engs, 5 Cow. 303 ; West River Bank v. Taylor, 34 N. Y. 133; Farmers’ Bank v. Vail, 21 id. 485. It also appears in the case, without contradiction, that “ Stone & Kimball,” a corporation, the maker of the notes, failed before their maturity; that Mr. White, the treasurer of the plaintiff, had a conversation with the defendant and Mr. Whit-ford,' his attorney, in reference to said notes, at the office of the Stone & Kimball Co., and that both then and there assured Mr. White that he need not be worried about the failure, as these notes would be paid by Mr. Williams, the defendant, who was abundantly able to meet them. This was practically an unconditional assumption of the debt of the defendant, who, knowing the maker could not meet the notes at maturity, asserted both his intention and ability to do so. See Sheldon v. Horton, 43 N. Y. 93, and kindred cases. It further appears that the defendant secured himself against loss by judgments recovered against the Stone & Kimball Co., before the notes in suit became due. It would look like departing from the course of justice to hold that the defendant, on what now seems to be a technicality, must be discharged from liability under such circumstances. Upon the entire case it can be held without violating any settled principle of law, that there is sufficient evidence of diligence on the part of the plaintiff to charge the indorser and authorize the judgment plaintiff demands.

Judgment for plaintiff.

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28 Misc. 52, 59 N.Y.S. 817, Counsel Stack Legal Research, https://law.counselstack.com/opinion/university-press-john-wilson-son-inc-v-williams-nysupct-1899.

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