
    David C. Porter, Appellant, v. Julia S. Thom, Respondent, Impleaded with John C. Thom.
    
      Sills and notes—presentment for payment-—-waiver of failure to give notice of • dishonor. ' \
    
    The fact that a party is in possession of a note at the time he demands payment-thereof from the maker, is sufficient to establish a presentment.
    Interest payments made by a wife, as agent for her husband, upon a note made* by the husband and indorsed by the wife, do not constitute an acknowledgment by-the wife of her liability upon the note, so as to operate as a waiver of the* failure of the holder to give her proper notice of dishonor.
    A-ppeal by the plaintiff, David C. Porter, from- a judgment of the-Supreme Court in favor of the defendant, Julia S. Thom, entered in the office of the clerk of the county of Kings on the 30th day off December, 1898, upon the dismissal of the complaint by direction . of the court after a trial at the Kings County Trial Term, ¡and also-from an order entered in said clerk’s office on the 26tli day bf January, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Albert G. McDonald, for the appellant.
    
      George G. Reynolds, for the respondent.
   Cullen, J.:

On a former ¡appeal we held that there was sufficient evidence* that a demand for payment of the note had been made to justify the submission of that question to the jury; but we were of opinion that the evidence was insufficient to authorize a finding that theindorser, Julia S. Thom, when she made payments of interest, had. any knowledge that the note had been dishonored. (Porter v. Thom, 30 App. Div. 363.) The evidence on this appeal bearing on. the first question is the same as that in the record previously before* us, and we see no reason to change our former view-thereon.

The plaintiff was in possession of the note when, as he testifies,, he demanded payment from the maker. The maker did not ask for the production of the note at the time of the demand. “ If, on. demand of payment, the exhibition of the paper is not asked for, and the party to whom denjand is made declines to pay on other-grounds, a more formal presentment by actual exhibition of the paper will be considered as waived.” (Daniel Reg. Inst. § 654; Lockwood v. Crawford, 18 Conn. 361; King v. Crowell, 61 Maine, 244.) Possession of the note seems sufficient. (Story Prom. Notes, § 243.)

On this trial the appellant, on his direct examination, testified that, after default had been made in the payment of the note, he said to the respondent: “I was tired of carrying it-; that I was unable—-I had asked Mr. Thom to pay it, and it was all promises, and she better make some arrangement to pay it herself or reduce the amount, or do something with it,” to which “She said he .had some little matter he thought he could make some money out of, and undoubtedly he could soon pay a portion,of it, or something of that kind.” On cross-examination he gave his statement to the respondent, as “ I said I was tired waiting for him; to fulfill his promises, and I think she better make some arrangement to pay it, or pay a portion of it; I was tired of his promises;' that is the way I introduced it; that is all I said to her at the first.” It is not pretended that the answer of the respondent constituted any promise on her part to pay the note. On the contrary, all she said, in answer to the appellant’s request, was that the maker, not she, would probably pay it. The respondent, however, is sought to be held liable on the fact that many of the interest payments on the note were subsequently made by her check. If these payments were made not on her own account but on account of her husband, the maker, they would not constitute an acknowledgment of her liability on the note so as to operate as a waiver of the failure of the plaintiff to give, proper notice of presentment and non-payment.. (Daniel Neg. Inst. § 1168; Whitaker v. Morrison, 1 Fla. 25.) After the conversation that had occurred between the appellant and the respondent, and a letter from the former to the latter asking her to call the attention of her husband to the fact that the semi-annual interest was in default, we are inclined to the opinion that the evidence shows that the payments made by the respondent were on her husband’s account and not on her own. But, however this may be, and if we assume the evidence on this subject presented a question for the jury, we think the present record shows the same failure in the plaintiff’s case' as appeared on the last appeal. The effect of plaintiff’s testimony must be limited to the last statement made by him, that given on his cross-examinatian. The conversation as then ’narrated cannot be construed as apprising the plaintiff that the note had been dishonored at. all. He did not state that payment of the note had been demanded. The maker of the note may have promised to pay it at some particular time and failed to keep his promise; yet, unless the demand was actually made, the note would not be dishonored sol as to set the Statute of Limitations running in favor of the indorser. (Parker v. Stroud, 98 N. Y. 379.) The rule should work the same in both directions. If the statement of the apjoellant would be insufficient to support the indorser’s defense of the Síatuté of Limitations,. we think it equally insufficient to charge her with notice that the note was dishonored.

The judgment appealed from should be affirmed, with costs.

All concurred.

Judgment and order affirmed, with costs.  