
    August T. Hirt et al., Respondents, v. Passie M. Vincent, Impleaded, Appellant.
    (New York Common Pleas—General Term,
    June, 1894.)
    Plaintiffs deposited a note indorsed by defendant with their bank for collection. The note matured and was presented for payment on May second, and payment thereof was refused. On May fourth plaintiffs took up the note and delivered notice of protest to defendant. Held, that, in the absence of proof that plaintiffs were notified of the nonpayment on the previous day, there was not such a sequence of notices as to charge the defendant as indorser.
    Appeal "by Passie M. Vincent from a judgment of the General Term of the City Court, affirming a judgment of the trial term against said defendant and her husband, William E. D„ Vincent, entered on a verdict directed by the court.
    
      Edward W. S. Johnston, for appellant.
    
      James P. Campbell, for respondents.
   Bookstaver, J.

The defendant William E. D. Vincent, husband of appellant, had been dealing with the plaintiffs for some years prior to the giving of the note in suit. When the note was given plaintiffs had a mechanic’s lien for $826.99 on certain property in Brooklyn for goods theretofore sold defendant William E. D. Vincent, the whole amount of the plaintiffs’ claim at that time being $953.58, of which $826.99 was secured by the lien. On the 29th of December, 1891, plaintiffs canceled their lien and took in payment of the entire claim $400 in cash and the note in suit. The note was made by the defendant William E. D. Vincent to the order of the appellant, and by her indorsed to the plaintiffs, specifically charging her separate estate with payment, and stating she “had received full value.” It was made payable at the West Side Bank, and matured on the 2d of May, 1892. It had been by the plaintiffs deposited in the Eleventh Ward Bank for collection, which bank, on the day of its maturity, presented it at the West Side Bank for payment, and payment was refused. The plaintiffs, however, did not get this note from the Eleventh Ward Bank until the morning of the 4tli of May, 1892, when one of them, between eleven and twelve o’clock in the forenoon, called at the house of the appellant Bassie M. Vincent and delivered a notice of protest to her.

The only question we deem it necessary to consider upon this appeal is whether or not that notice was in due time. The evidence is clear that the notice of protest was personally handed to the appellant on the fourth of May, in the morning, and that a notice was also mailed to her the same day. The counsel for the respondents on the argument contended that there was evidence showing that the Eleventh Ward Bank had sent notice to plaintiffs on the day prior to that time, but we have carefully looked through the testimony and find nothing showing that fact. It is true that the notice of protest is dated on the third of May, but Mr. TIagdorn, one of the plaintiffs, testified that the day he mailed the notice to the defendant he also had the interview with her and served the other notice on her, and that he was “ sure it was the fourth,” thus negativing the inference to be drawn from the date of the notice. If the Eleventh Ward Bank had, on the morning of May third, notified plaintiffs of the protest of the note, and then the plaintiffs had given the notice they did, the sequence of notices would have been complete and the appellant would have been bound thereby. West River Bank v. Taylor, 34 N. Y. 128, 130; Mead v. Engs, 5 Cow. 303; Farmers’ Bank v. Vail, 21 N. Y. 485; Smith v. Poillon, 23 Hun, 630, 631; 87 N. Y. 597, 598; Manchester v. Van Brant, 2 Misc. Rep. 228; 50 N. Y. St. Repr. 588.

On a new trial it may be shown that the Eleventh Ward Bank, having received the note back on the evening of the second after business hours, duly notified the plaintiffs on the following day, in which event the sequence would be complete. As there must be a new trial for the reasons above given, it is now unnecessary to discuss the other questions raised upon this appeal.

The judgment must, therefore, be reversed and a new trial ■ordered, with costs to the appellant to abide the event.

Bischoff and Pryor, JJ., concur.

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