
    Martin v. Perqua.
    
      (Supreme Court, General Term, Third Department.
    
    September 14, 1892.)
    Promissory Note—Protest and Notice—Waiver.
    Defendant, who was accomodation indorser on the note in suit, and on another also held by plaintiff, which was then a month past due, wrote plaintiff the day before the maturity of the note in suit that he wanted no cost made on the notes, that he could in time pay them, and that he would do anything to make plaintiff safe and satisfied. Plaintiff did not demand payment of the maker at maturity, nor give notice to defendant of nonpayment. Subsequently defendant wrote plaintiff to know if the note had been paid, and that if it had not he had better put it in judgment. Beld, that the first letter might well apply to the note already due, and hence did not constitute a waiver of protest and notice as to the note in suit, and that the last letter did not' revive defendant’s liability, which had been lost by plaintiff’s failure to make demand and give notice of nonpayment.
    
      Appeal from Saratoga county court.
    Action by George B. Martin against Peter A. Perqua as indorser of a promissory note. Prom a judgment of the county court, reversing a judgment of a justice of the peace in favor of plaintiff, the latter appeals. Affirmed.
    Argued before Mayham, P. J., and Putnam and Herrick, JJ.
    
      Ira D. Roods, (J. W. Hill, of counsel,) for appellant. Charles H. Sturges, for respondent.
   Mayham, P. J.

The complaint was in the ordinary form of a complaint by the holder against an indorser, alleging the demand and refusal at the place where the note was payable, and notice of protest to the defendant. The answer contained a general denial, and, among other separate defenses, alleged that the note was never presented for payment at the place designated as the place of payment, and no demand was made and no notice of protest ever given to the defendant. On the trial no demand or notice of protest was proved, and the defendant asked the court to nonsuit the plaintiff for that reason, and that motion was denied by the justice, who thereupon rendered judgment for the plaintiff for the amount of the note and cost. It is not denied by the respondent that, to charge an indorser of a promissory note, demand of payment and notice to the indorser of nonpayment are necessary prerequisites to a recovery against him unless notice of protest is waived. But it is insisted by the respondent that notice of protest was waived in this case. The chief ground of that contention is a claim in a letter written by the defendant to the plaintiff, in which he uses this language: “No; I want no cost made on notes; I can in time pay them, and I would rather than ask Isaac to sign with me. I will give you a claim on my father’s estate, or will do anything to make you safe and satisfied.” This letter was written on the 29th day of October, the day before the note in question became due. At this time another note held by plaintiff, and on which the defendant was also an indorser, was about a month past due, to which the above language would apply with even more force than to the note in question; and it appears from other correspondence that the note which matured on the 30th day of October was paid, or that he relied upon the maker’s promise that he would pay it. On the 10th of November, after the letter of October 29th, he writes the plaintiff as follows: “Did Conkey [the maker] pay the note which fell due on October 30th? He wrote me that he would meet it.” In the absence of any express waiver of notice of protest, we do not think that one can be implied from this correspondence. The defendant being an accommodation indorser, and not the principal debtor, there are no equities between him and the holder which require the court to relax the rule which exists between the holder and indorser as to the notice of protest. The plaintiff, who had procured the note to be discounted at the bank, voluntarily paid the same, and withdrew it from the bank without suffering it to go to protest, and he expressly testifies that he did not present the note to any one and demand payment. On the day the note fell due, before 3 o’clock, the hour for closing the bank, he presented his own check, and took the note out of the bank, and no demand of payment of the maker, or notice of nonpayment to the defendant, who was the first indorser, was given. By that omission the indorser was discharged, unless he had waived notice of protest, which, as we have seen, he had not. Nor do we think his letter of November 10th revived his liability on this note. We think the judgment of the county court, reversing that of the justice of the peace, is right, and should be affirmed.

Judgment affirmed, with costs. All concur.  