Fonseca v. Hartman

GILDERSLEEVE, J. The defendant is sued as indorser of a promissory note. Judgment was given for plaintiffs. Defendant bases his appeal on the ground that he never received notice of protest. The notice of protest was sent by mail to “Clarence Hartman, New York City, New York.” There is no evidence that he lived in New York. His address was not added to his signature on the note. To hold the indorser, notice of protest must be sent to such indorser. Laws 1897, p. 739, c. 612, § 160. The statute above cited, in section 179, provides that: “Where a party has addéd an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows: (1) Either to the post office nearest to his place of residence or to the post office where he is accustomed to receive his letters; or (2) if he lives in one place and has his place of business in another, notice may be sent to either place, or (3) if he is sojourning in another place, notice may be sent to the place where he is sojourning. But where the notice is actually received by the party within the time specified in this act, it will be sufficient, though not sent in accordance with the requirements of this section.” [132] The defendant swears he never received the notice. If the holder of the note does not know where the indorser lives, but can acquaint himself with the place by a reasonable endeavor, he must do so. Brewing Co. v. Reinheimer, 32 Misc. Rep. 595, 66 N. Y. Supp. 458. The statute itself, in'section 183, provides that “notice of dishonor is dispensed with, when, after the exercise of reasonable diligence, it cannot be given to, or does not reach, the parties sought to be charged.” In the case at bar there is no evidence that the least effort was made to ascertain defendant’s address. In the case of Bacon v. Hanna, 137 N. Y. 382, 33 N. E. 303, 20 L. R. A. 495, it was held that looking for the address in the directory was not sufficiently diligent inquiry. But in the case at bar there is nothing to indicate that even that trouble was taken to ascertain defendant’s address. As was said by Mr. Justice Barrett in the case of University Press v. Williams, 48 App. Div. 189, 62 N. Y. Supp. 986, the notary seems to have “simply mailed notice of dishonor to him at haphazard, and neither of these notices was addressed, as we have seen, to his residence or place of business.” Plaintiffs received notice of the protest, but took no steps to have the notice sent to defendant. The notary’s clerk sent it, as we have seen, simply to “Clarence Hartman, New York City, New York,” without, apparently, having made the least inquiry to ascertain if defendant lived, or ever had lived, or was sojourning in this city. The case of Mohlman Co. v. McKane, 60 App. Div. 546, 69 N. Y. Supp. 1046, does not apply here. There it was affirmatively shown that defendant had resided at Sheepshead Bay, and the court held that, in the absence of any proof to the contrary, the presumption was that there had been no change of address up to the time of sending the notice. But in the case at bar there is no evidence, as we have already intimated, that defendant lived, or ever had lived, in this city, or was sojourning therein. Eor the reasons above indicated, the judgment should be reversed, and" a new trial granted, with costs to the appellant to abide the event. All concur. -