
    Isaac Kupferberg, Appellant, v. Harry Horowitz, Impleaded, et al., Respondent.
    (Supreme Court, Appellate Term,
    January, 1907.)
    Negotiable paper — Protest — Effect of certificate as evidence.
    The certificate of a notary public of the protest of a note for nonpayment is entitled to every presumption in its favor and, unless the contrary is clearly indicated, should prevail against the naked statement of an endorser that he did not receive notice.
    Appeal by the plaintiff from a judgment of the Municipal Court of the city of New York, fifth district, borough of Manhattan, rendered in favor of the defendant.
    Emanuel Klein, for appellant.
    Sternberg & Jacobson, for respondent.
   Blanchard, J.

The defendant endorsed two promissory notes for $100 each, which by their terms were made payable at a bank in Newark, New Jersey, and refused to pay them on the ground that he did not receive notice of their dishonor. The learned court below g’ave judgment for the defendant and we think he erred in so doing. The notes were made by one Sehwartzman and endorsed by the defend-, ant Horowitz, at the time they were delivered to the payee, who is the plaintiff. They also bear the signature of the payee, presumably for discount or collection. At the time of maturity they were presented for payment at the place they were made payable, and their payment was duly demanded and refused. Thereupon the notaries public who presented the notes for payment duly protested them, respectively, and so certified under the seals of their office. The plaintiff testifies that he received notice of the protest of each of the notes and that he called on the defendant Horowitz who told him that he had also. The defendant denies that he received notice of protest, but admits that the plaintiff told him that the notes had not been paid and that he went to see the maker of the notes with the plaintiff. Moreover, the notes bore the address of the defendant, which was evidently put there by the defendant at the time of his endorsement of them. The notaries public who presented and protested the notes charged for mailing, and this court may take judicial notice that they performed their duty. Every intendment is presumed to be in favor of the fair performance of his duty by a notary public who certifies to the protest of negotiable paper for non-payment, and his certificate should be read in harmony with the performance of official'duty unless the contrary construction is clearly'indicated. McAndrew v. Radway, 34 N. Y. 511, 513.

We think that the judgment should be reversed and a new trial ordered, with costs to the appellant to abide the event.

Gildebsleeve and Dayton, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  