
    William J. Townsend, Resp’t, v. Thomas Auld, App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed December 3, 1894.)
    
    1. Bills and notes—Protest—Proof.
    To be presumptive evidence, the notarial certificate must conform to the requirements of § 928 of the Code.
    2. Same.
    The certificate, though it fails to specify the residence and postoffice of the party to whom notice is sought to he given, is still presumptive evidence of the facts certified, and proof aliunde is competent to show that the postoflice to which the notice was sent was the party’s proper post-office.
    3. Same.
    Evidence that the notice of protest was not received is competent to rebut the presumption arising from the recital in the certificate as to mailing.
    4. Same—Mailing.
    The deposit of the notice of protest in a private letter-box of a private office is not a deposit in the postoffice.
    Appeal from a judgment of the general term of the city court, affirming a judgment entered on a verdict directed for-plaintiff.
    
      Theo. B. Friend, for app’lt; Charles P. McClelland, for resp’t.
   Pryor, J.

Action on promissory note against indorser. Defense, no notice of dishonor. The note was payable at the Tarry-town National Bank, Tarrytown, N. Y. A notarial certificate of dishonor was introduced in evidence, but, although purporting to be in conformity to the provisions of § 923 of the Code of Civil Procedure, it failed to specify “the reputed place of business of the defendant,” and “the postoffice nearest thereto.” . The defendant served no affidavit that he had not received notice of dishonor, and the point presented for decision is, whether, because of the absence of the specification of residence and postoffice, the certificate was nugatory as presumptive evidence of notice of dishonor.

The adjudications cited by the plaintiff in support of the sufficiency of the certificate as presumptive notice of dishonor, critically examined, afford no ground for his contention. Treadwell v. Hoffman, 5 Daly, 207, 213, proceeds avowedly on the authority of Ketchum v. Barber, 4 Hill, 225, 237. But Ketchum v. Barber proceeds on a palpable misconception of the import of the statute (chapter 141, Laws 1835; 4 Edm. St. at Large, 455). The effect of the certificate as notice does not appear to have been a question in the case; the sole point considered in the prevailing opinion of Nelson, Oh. J., or of Bronson, J., concurring, being whether the note was void for usury. Cowen, J., however, adverted to the certificate, and held it valid on the ground that the act of 1833, chap. 271 (identical with § 923 of the Code), had been modified by the act of 1835. But the acts of 1833 and 1835 are in no sense inconsistent. They embrace different subjects, and have in view different objects. The act of 1833 constitutes the certificate a notice of dishonor. The act of 1835 does not touch or contemplate any certificate, but only provides that a notice of dishonor shall be sufficient if mailed “to the city or town where the person sought to be charged resided.” The latter statute provides for service of the notice; the.-former,- for proof of the service. They are wholly apart, and neither derogates from the effect of the other. It was an inadvertent and untenable ruling, therefore, to hold that the act of 1835, in any particular qualified the operation of the act of 1833. Similarly, when the case was in the court of errors (Ketchum v. Barber, 7 Hill, 444), no member of the many who discussed it considered the point of the sufficiency of the certificate,—the entire debate involving only the question of usury,—and the judgment was affirmed on the decision of that question alone. See note at end of report. It was unwarrantable, then, and misleading, to insert in the syllabus, as an adjudication of the court, that “ since the act of 1835 the certificate need not specify the reputed place of residence of the party notified, nor the postoffice nearest thereto.” At all events, by incorporating the statute of 1833 in the Code subsequently to tire statute of 1835, the legislature makes manifest its intention that the provision of the former enactment shall not be superseded by the latter.

Reversal of the judgment, however, may not be the necessary consequence of the imputed defect in the certificate. The certificate states the demand, and the non-payment, the protest, and the deposit in the postoffice of notice of protest, postage prepaid, addressed to the defendant, “Thos. Auld. New York.” Section 923 of the Code provides that: “The certificate * * * of the presentment * * * for payment or of the protest, for non-' acceptance or non-payment of a promissory note * * * or of the service of notice thereof * * * specifying the mode of giving the notice, the reputed place of residence of the party to whom it was given, and the postoffice nearest thereto, is presumptive evidence of the facts certified.”

The facts of presentment, non-payment, protest, service of notice and the mode of giving the notice, are all recited in the certificate, and the certificate is therefore presumptive evidence of “ the facts certified.” A writer of the highest authority says that the certificate “isevidence of such things as it distinctly states, and purports to give evidence of.” 2 Daniel, Neg. Inst. § 962. Assuming that the direction, “New York,” be a sufficient address, nothing is wanting to the completeness of the notice, except proof of the residence of the defendant in New York, and that prooof he himself supplied on the trial. It is objected, however, that the certificate is that the notice of protest was directed to “New York” simply, not New York city. The act of 1835 provides that the notice shall be sufficient “if directed to the city or town where the person sought to be charged resided.” Is it open to dispute or to doubt that a letter mailed at Tarrytown, in this state, addressed to “Thos. Auld, New York," would be understood by the postoffice authorities as intended for the city of New York, and be transmitted and delivered accordingly ? Common sense is to be consulted in the construction of statutes and of evidence ; ánd by this, the surest and safest of all guides, we are led to the conclusion that the unmistakable destination of a letter directed, in this state, simply to “ New York," is New York city.

Supposing the certificate wholly ineffectual as proof of notice of dishonor, the plaintiff gave other evidence of the fact; and the question is, was it sufficient? A duplicate copy of the_ notice was sent to the plaintiff, and in due time he essayed to mail it to the defendant. Had this copy been deposited in the postoffice to the defendant’s proper address, that would suffice as valid service of notice of dishonor. Gawtry v. Doane, 51 N. Y. 84, 90; Manchester v. Van Brunt, 50 St. Rep. 588; 22 N. Y. Supp. 862. But it was not- deposited in the postoffice. It was deposited, said the plaintiff, “in a letter-box,—in a receptacle in our office for the receipt of letters to be mailed.” It was not traced into the mail, or the hands of a letter-carrier. This is the evidence : “ Q. Bo you know what became of this sealed envelope, postpaid, addressed to Mr. Auld, after it was deposited ? A. I know no more than what is the custom of the office. Q. Do you know what became of it ? A. I never saw it afterwards.”

In Mechanics & T. Bank v. Crow, 5 Daly, 191; affirmed, 60 N. Y. 85, we held that a deposit in a lamp-post box provided by the government, is a deposit in the postoffice. So, in Wynen v. Schappert, 6 Daly, 588, we adjudged a delivery to an official letter-carrier to be a deposit in the postoffice. But to rule that the placing a protest in a private receptacle in a private office, without further evidence of its fate, is equivalent to a deposit in the postoffice, would strain the sense of the statute beyond all reason, and substitute a constructive notice of dishonor, for which the law affords no sanction.

Our conclusion is that the notarial certificate authorizes the inference that the notice of dishonor was duly deposited in the post-office, and was directed to the defendant at the city of his residence. But the proof is presumptive only, and as such was open to rebuttal. Accordingly, the defendant offered to show that he never received the notice, but the evidence was rejected. The ruling was error. The fact that the notice was not received surely tends to the conclusion that the notice was not duly mailed to the defendant at his postoffice. Were it the fact that the notice, directed to the proper postoffice, had been deposited in the mail, evidence of its nonreceipt would be immaterial. Gawtry v. Doane, supra; Arnold v. Rock River V. U. R. R. Co., 5 Duer, 207, 211. But the due posting and direction of the notice rests only upon presumptive proof, and evidence to the contrary was admissible.

The court erred, also, we incline to think, in directing a verdict. Even in the absence of proof to the contrary, it was probably still a question for the jury, on all the facts of the case, whether the notice had been received by the defendant. Dunn v. Devlin, 2 Daly, 122. However this may be, the error in the exclusion of evidence requires a reversal of the judgment.

Judgment reversed and hew trial ordered ; costs to abide event. All concur.  