Harris v. Schafler

Lewis, David C., J. This is an action for summary judgment by the holder of a negotiable promissory note against one of the indorsers. The indorser sets up as a defense that no notice of dishonor was given to or received by him. The note contained a stipulation, “ The endorsers hereby waive notice of protest or dishonor.” The stipulation does not expressly cover presentment and did not expressly waive presentment or protest, but only notice of protest. (See Neg. Inst. Law, §§ 130, 180, 182.) The note is not to be confused with a foreign bill of exchange. Presentment of note is one thing; protest another, and notice of protest a separate transaction. Necessarily, therefore, if the law requires protest and notice of protest, waiver of the former would waive all steps based upon its performance. And if no protest is necessary, then the waiver of notice of an unnecessary step could not be regarded as the waiver of a necessary presentment. [2] Apparently the liability sought to be enforced against the defendant is his liability as an indorser. In the absence of pleading and proof of waiver of presentment and notice of dishonor, there would be no liability. (See Congress Brewing Co. v. Habenicht, 83 App. Div. 141; Chelsea Park Garage v. Newberger, 200 N. Y. Supp. 265.)