
    Montgomery County Bank v. Marsh.
    
      Notice of non-payment. — Competency of witness
    
    A notice of non-payment, by mail, directed to the post-office through which the indorser usually receives his letters, is sufficient, though he reside in a neighboring village, where there is a post-office, through which he occasionally receives letters.
    A stockholder of a corporation is a competent witness for it, under the Code, in an action in which he is not named as a party.
    Montgomery County Bank v Marsh, 11 Barb. 645, affirmed.
    Appeal from the general term of the Supreme Court, in the fourth district, where a judgment rendered in favor of the plaintiff, in a case tried before the court, without a jury, had been affirmed. (Reported below, 11 Barb. 645.)
    This was an action against the defendant, Seymour N. Marsh, as indorser of two promissory notes, made by the firm of Loucks & Gray, payable to the order of Peter G. Loucks, and indorsed by him and Marsh. The makers were joined as defendants. On the trial of the case, before Paige, J., without a jury, it appeared, that the notes were made by the defendants, George P. Loucks and Morgan Gray, by the name of Loucks & Gray, and dated Canajoharie, May 2d, 1848. One was payable to the order of Peter G. Loucks, three months after date, at the Montgomery County Bank, in Johns- * aro i *0WI1> f°r *$800, and indorsed by the defendants -* Peter G. Loucks and Seymour N. Marsh. The other was payable to the order of Peter G. Loucks, three months after date, at the Bank of the State of New York, in New York city, for $1000, and indorsed by the same defendants. Under the signature of Marsh, on the back of the last-mentioned note, was written “Canajoharie, Mont. Co.,” by the plaintiff’s cashier, but there was no evidence that it was done by the direction or even knowledge of Marsh.
    Both notes were duly presented for payment at the respective banks, where payable, on the 5th day of August 1848, the day of the maturity thereof, and were protested on that day for non-payment. It was admitted, that notices of the non-payment and protest of the notes were duly served on Peter G-, Loucks, and that such notice of the protest of the note for $1000 was served on the defendant Marsh, by putting the same into the post-office, in the city of New York, on the 5th day of August 1848, directed to Seymour N. Marsh, at Canajoharie, Montgomery county, New York.
    It was proved, that notice of the non-payment and protest of the other note was served on Peter G. Loucks, by depositing the same in the post-office, at Johnstown, on the 5th day of August 1848, directed to Peter G. Loucks, at Palatine Bridge, Montgomery county; and that, at the same time, a like notice of non-payment and protest was served on Seymour N. Marsh, by depositing the same in the pQst-office, at Johnstown, directed to Seymour N. Marsh, at Canajoharie, Montgomery county. The evidence showed that, prior to November 1847, Marsh resided at Canajoharie, and at that time, having a family, he moved to Palatine Bridge, directly across the river from Canajoharie, and there had since resided on his farm, and that the cashier of the plaintiff knew that fact. Marsh, in 1847 and 1848, was engaged in making and vending trusses; he made them at Cherry Valley, and kept his principal office for vending them at Canajoharie, and was in the habit of going to his office nearly every day, when at home. There was a post-office at Palatine Bridge, and another at Canajoharie; the former was nearer to the residence *of the defendant Marsh by about half of a mile. The mail coming from the east reaches the post-office at Palatine Bridge first. Marsh, in the year 1848, as well as previously, had a letter-box in the post-office at Canajoharie, to which he was in the habit of resorting almost daily, when at home, and received letters at that office, and mailed letters there to others, during the year 1848. His postage at that office charged to him during the last quarter of that year was $8.05, and nearly or quite that for the preceding quarter. He also did business at the post-office at Palatine Bridge, to which he resorted two or three times a week himself, and his. children were there offcener; when he sent letters from that office, he was in the habit of paying the postage at the time; his business there amounted to forty-five or sixty cents for the last quarter of the year 1848. Marsh addressed three letters to the plaintiff’s cashier in 1848, in relation to the business of White & Marsh, concerning a note of theirs at the plaintiff’s bank (White having been former partner in the truss business); they were dated at Canajoharie, May 15th, July 6th, and July 26th, 1848. It was proved by the postmaster at Canajoharie, that Marsh, after he moved to Palatine, invariably refused to take notices of protest from that office, which came there addressed to him. It was also proved by a clerk in the post-office at Palatine Bridge, that there were a good many letters came to that office, addressed to Marsh, which he called protests, which he did not take; he took some.
    James Wells, a stockholder in the Montgomery County Bank, was offered as a witness on behalf of the plaintiff; he was objected to, on the ground of interest, but the objection was overruled, and an exception taken. The witness gave material evidence.
    The learned judge gave judgment upon both the notes, against all of the defendants; which having been affirmed at general term, the defendant Marsh took this appeal.
    
      Mitchell, for the appellant.
    
      Wells, for the respondent.
   Jewett, J.,

(after stating the facts.) — The first question is, whether the service of the notice of non-payment of the notes and protest was sufficient to charge Marsh as an indorser. This was a case where notice by mail, if sent, directed to the defendant at the ^proper - ^ place, would be sufficient, as the defendant did *- not reside in the town or place where the notes were payable. It is supposed by the counsel for the defendant, that the rule on this subject requires, that the notice, when sent by mail, to be sufficient, must be sent to a post-office in the town or village where the indorser resides, unless the indorser has, at the time of indorsing, specified the post-office to which notice is to be addressed. The post-office at Canajoharie was thus specified on the back of the note for $1000, payable at the Bank of the State of New York, under the name of the defendant Marsh; but that was done by the cashier of the plaintiff’s bank, without the direction or assent of Marsh, and, of course, cannot be allowed to affect him.

The rule of law in respect to the question under consideration was correctly stated by the chancellor in Remer v. Downer (23 Wend. 620), that if the drawer of a bill of exchange, or the indorser of a bill or note, does not reside in the town or place where such bill or note is payable, the notice of dishonor may be sent by mail, directed to him at the place of his residence, or if he is in the habit of receiving his letters and papers through the post-office in an adjoining town, the notice may be directed to him at either place. (Reid v. Payne, 16 Johns. 218; Bank of Geneva v. Howlett, 4 Wend. 328; Downer v. Remer, 21 Id. 10, where the rule is stated by Judge Bronson; Seneca County Bank v. Neass, 3 N. Y. 442.)

This rule must be understood, however, not to apply to a case where the drawer of indorser of a bill, or an indorser of a promissory note, &c., at the time of affixing his signature as drawer or indorser, has specified therein the post-office to which the notice is to be addressed. (Laws of 1835, c. 141.) It follows, that the notices of protest, sent by the mail, addressed to the defendant Marsh, at Canajoharie, were sufficient to charge him as indorser of the notes, although he, at the time the notes were made and indorsed, and at the time they became payable, resided in Palatine; because it appears that he was in the habit of receiving his letters to a considerable extent at the post-office in Canajoharie, to which, for that purpose, he was in.the habit of resorting almost * 485 1 <^a^r’ w^ien a* home. The evidence shows *that he kept a letter-box at that post-office, and received most of his letters at that office, during the summer and fall of 1848, although he received some at the post-office in the town in which he resided. In addition to that, it was shown, that he had dated three of his letters, directed to the plaintiff’s cashier, in May and July of that year, at Canajoharie.

The remaining question arises upon the exception taken to the decision of the judge, admitting James Wells as a witness for the plaintiff, notwithstanding he was a stockholder in the bank, at the time. The 398th section of the code declares, that no person offered as a witness shall be excluded by reason of his interest in the event of the action, and § 399 provides, that the last section shall not apply to a party to the action, nor to any person for whose immediate benefit it is prosecuted or defended, nor to any assignee of a thing in action, assigned for the purpose of making him a witness. Wells, though- a stockholder in the plaintiff’s bank, is not a party to the action, nor a person for whose immediate benefit it is prosecuted, within the meaning of § 399, and was, therefore, a competent witness in favor of the bank. (Pack v. Mayor of New York, 3 N. Y. 489, 493; Washington Bank v. Palmer, 2 Sandf. 686; N Y. and Erie Railroad Co. v. Cook, Id. 732.) The judgment should be affirmed, with costs.

Judgment affirmed.  