
    George B. Martin, App’lt, v. Peter A. Perqua, Resp't.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed September 14, 1892.)
    
    ¡Bills and notes—"Waiver op protest.
    Defendant, who was an accommodation endorser on a note, wrote to plaintiff the day-before it came due that he wanted no cost made on the notes; that he could pay them in time and would give him a claim on his interest in his father’s estate to make him satisfied, and afterward wrote to ask if the maker of the note had paid. It appeared that he was also endorser on a note which was overdue at the time the first letter was written. Held, that waiver of notice of protest could not he implied from the correspondénce.
    • This action was commenced in justice’s court to recover against the defendant as endorser of a promissory note.
    The plaintiff recovered before the justice, and an appeal was taken to the county court of Saratoga county, where the judgment was reversed and the plaintiff appeals to this court.
    
      Ira D. Roods (J. W. Hill, of counsel), for app’lt; Charles H. Sturges, for resp’t.
   Mayham, P. J.

—The complaint was in the ordinary form of a complaint by the holder against an endorser, 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 non-suit 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 costs. It is not denied by the respondent that to charge an endorser of a promissory note demand of payment and notice to the endorser of non-payment are necessary pre-requisites 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 clause 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 endorser, 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 30 % 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 endorser and not the principal debtor, there are no equities between him and the holder which requires the court to relax the rule which exists between the holder and endorser 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 three 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 non-payment to the defendant, who was the first endorser, was given.

By that omission the endorser 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 10 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.

Putnam and Herrick, JJ., concur.  