
    Sigmund Biber, Respondent, v. Barbara Schmidt, Appellant.
    Appeal by the defendant from a judgment of the Municipal Court of the city of New York, borough of Manhattan, rendered in favor of the plaintiff upon a trial had without a jury.
    Action upon a promissory note.
    The answer was a general denial; failure to give notice of dishonor of the note; lack of consideration and fraud.
    Carl L. Schurz, for appellant.
    P. O. Taiman, for respondent.
   Per Ouriam.

In order to hold the defendant liable as indorser of the promissory note in suit, it is incumbent upon the plaintiff to show that notice of its dishonor was given to her. The Negotiable Instruments Law, General Laws, chap. L, § 160. The record fails to disclose any proof whatever with respect to this essential fact. The plaintiff insists that such evidence is not required, in view of the provisions of section 923 of the Code of Civil Procedure, which provides that the certificate of the notary public shall be presumptive evidence of the facts certified by him, but the difficulty with this position is that the certificate of the notary in the case at bar merely certifies to the presentment and protest of the note, and is silent as to the service of notice of dishonor. Hence, we cannot indulge in the presumption that such notice was given.

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

Present: Beekman, P. J., Giegerich and O’Gorman, JJ.

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