
    The People v. The North River Bank. In re Manley.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 31, 1891.)
    
    1. Bills and notes—Notice of protest—Place of business.
    The endorser testified that he was a resident of New Jersey, but had a place of business in New York city where he received mail; that lie had an office there, but did no business in New York. Held, that within chip. 416 of the Laws of 1857, § 8, he had a "place of business” to which a notice of protest might be mailed.
    2. Same—Evidence.
    What evidence of mailing a notice of protest is sufficient.
    (Van Brunt, P. J., dissents.)
    Appeal by the receiver of the North Eiver Bank from order directing him to pay a dividend on the claim of the respondent as a depositor of said bank.
    
      Peter A, Hendriclc, for app’It; N. S Spencer, for resp’t.
   Van Brunt,P.J.

(dissenting)—George Manley,the petitioner,was a depositor in the North Eiver Bank in November, 1890, the time of the commencement of this action for its dissolution and of appointment of the appellant as receiver. There is no dispute as to the amount which the respondent had upon deposit at the time of the appointment of the receiver. On the 30th óf January, 1891, the receiver was directed by the court to pay a dividend of thirty per cent on the amount of all deposits. The receiver refused to pay the petitioner the amount of this dividend on his deposit

The petitioner then applied to the court for an order directing the receiver to pay him a dividend.

On this application the receiver excused his refusal upon the ground that he held an unpaid note for $860 made by one Townsend and endorsed by the petitioner which he claimed should be set off upon the petitioner’s dividend. ■ The petitioner claimed that he was not liable upon the note upon the ground that he had not been charged as endorser. A reference was ordered to take proof of the facts as to the petitioner’s liability on the note; and the referee reported that the said petitioner had no place of business in the city of New York, and that the only notice of protest which was sent in time was addressed to him at No. 115 Broadway in the city of New York, and that as the endorser had no place of business or residence in the city of New York, he was not charged as indorser.

We think that the learned referee in coming to this conclusion has adopted a too stringent definition of the words “ place of business ’’ contained in the statute. Laws of 1857, chap. 416, § 3. The statute-has not defined what it means by place of business, nor how much business a man must do at a given locality in order that it. may be considered his place of business within the meaning of the statute. The object of requiring notice of protest to be sent to the endorser promptly after a commercial paper has been dishonored is to give the endorser notice of the fact of the dishonor in order that he may protect himself, and the whole course of legislation upon this subject has been to adopt such a course as will be most likely to give the endorser notice and render it possible for the holder of the paper to comply with the requirements of the statute.

In none of the adjudicated cases has any question similar to the one presented at bar come up for discussion.

The course of decisions prior to the passage of the act of 1857, where the endorser did not reside in the town or place where' the notes were payable, seems to have been to allow service of notice by mail addressed either to the place of residence of the endorser or to the post office at which he was accustomed to receive his letters and papers. Such was the decision in the case of Remer v. Downer, 23 Wend., 620, and Montgomery Co. Bank v. Marsh, 7 N.Y., 481, and the‘statute of 1857 seems to have been, intended to extend the right to serve by mail to those cases in which the residence or place of business of the endorser was in the same city or town where the note might be presented for payment

The learned referee, in referring to this statute of 1857, seems to have fallen into an error by limiting the effect of this statute to those cases in which the endorser resides in the city or town where the note is made payable. Such is certainly not the language, and evidently was not the intention of the legislatura The language is, “ whenever the residence or place of business shall be in the same city or town where the note is made payable, the notice may be served by mail directed to the endorser at such city or town."

But it is claimed that the evidence in this case does not show that the endorser had a place of business within the city of Few York; and this, notwithstanding the fact that the endorser swore that he had. Upon cross-examination the respondent testified distinctly to the question:

“Q. Have you aplace of business in Few York? A. Yes.
“Q. Where is it? A. 115 Broadway, Borell building.
“ Q. And that is where your mail is served, is it not? A. Yes,sir; the mail to Few York.”

He was further asked whether he and his son had not an office at 115 Broadway, and his answer was, “We have an office, but do not do any business in Few York.” His son also swore that he had an office at 115 Broadway, but that he did not conduct .any business there.

We think that within the spirit of the cases above cited the respondent, having a place in the city of Few York where he was accustomed to receive his mail,, having in his own judgment a place of business in the city of Few York, although he did not carry on there merchantable business in the ordinary sense of the term, yet, within the provisions of the statute, he had a place of business to which a notice of protest might be mailed.

We think, therefore, that the referee erred in holding that notice of protest mailed to the endorser at 115 Broadway was not sufficient service in order to charge him as endorser.

Upon an examination of the evidence offered for the purpose ■of establishing the mailing of this notice in view of "the evidence that no such notice was ever received at Fo. 115 Broadway, it may . well be claimed that no sucn notice was ever sent, even to that address.

The evidence offered to prove the sending of such a notice shows that the witnesses examined have no recollection whatever of the mailing of that notice and that it is mere guess-work on their part when they testify in respect thereto. The witness Oonnell in his examination states that he received certain notices in reference to the note in question as to its not being paid and he produced two of them, but he could not give the date exactly as to when they were received, his impression being that they were received the day they were dated, the 26th of January. When asked whether there were any other notices with them, his reply was: “ My recollection is there were notices to Mr. Manley and Mr. Townsend." And then in answer to the question “What was done with those other notices?” he answered “They were sent to Mr. Manley.

“ Q. By whom ? A. By Mr. Robertson. ” Why the notices to Townsend should be sent to Mr. Manley he does not explain. When Mr. Robertson comes to be examined, he is asked:
“Q You have heard the testimony of Mr. Connell, and you are the Mr. Robertson referred to by him ? A. Yes, sir.
“ Q. Fow tell us what you did about mailing those notices ? A. Those notices were sent to the bank.
“ Mr. Spencer: Do you know they were sent to the bank of jour own knowledge?
“ The Witness: I know- because I have seen them addressed a great many times.'
“ Mr. Spencer: These particular notices you know must have been sent to the bank ?
“ The Witness: They must have been, or I would not have, seen them; 1 received them from Mr. Connell.
“ Q. What did -you do with them? A. They were handed tome and I sorted them out ;• they came in two sets, and those to-outside parties, except Mr. Higgins and Mr. Ingersoll, the cashier,, were put in envelopes and directed to ’ the parties. to whom they belonged.
“ Q. How did you direct them, and where ? A. I directed them to the addresses of those parties.
“ Q. Do you now recollect what address you directed the one-to Mr. Manley to ? A. His address was -115 Broadway-; I, of course, must have addressed it to that address; I do not remember any other address.” ■ .

It is clear that the witness had no. recollection whatever when he testified as to what address he had put on the envelope. . He-is testifying as to what his custom was, not as to what he recollects having done with these particular notices. He is speaking about, a great many notices. He says, ‘“The notices were handed to me and I sent them out. • They came- in two sets and those to outside parties were put in envelopes and directed -to the parties to whom they belonged and that he-directed-them to the addresses of those parties, evidently referring to the manner in which business-was.ordinarily done, but without-any present recollection. He is then asked: ' •

“ Q. Did you mail those yourself ? A. Ho sir.
“ Q. "What didyou do -with-them ? A; I addressed them and sealed them- aftd-'-p'ut them in the boxy our letter box.
“Q. You recollect sealing them and addressing them and putting them in the box ? A. Yes, sir.”
’ Upon cross-examination he is asked: ■
“ Q. How many other notes were -protested on the 26th of January, 1891' ? A. That I could not tell you, how many were protested.
“Q. Were there a number? A.. I could.not state how many there were.
“ Q. Were there more than oné? A. I could .not say that either.
“ Q. Do you mean you do not recollect anything about it? A. I recollect that there were notices on that day, but how many there were I- do not know. Undoubtedly there were, because on the 26th, I do not say that the notices came on the 26th, they might have been posted on the 26th and come the next morning or that day.- ■
“Q, Were there notices coming every- day? A. There were.
“Q. A’number of them all the time ? A. Coming in, quite a good many at this time, protested paper, quite a number of, them coming in; I could’ not keep track so as to say -or tell how many were coming in. Of course, they were coming in, and I had charge of those as well as sending them off. I turned those over every day. I had charge of those myself and had a file, and I sent off those to be sent off, and those received I put on this file to be kept for the receiver and cashier of the bank.
“ Q. Did you keep any record of the notices you sent off? A ■Only those.
“ Q. You only kept those notices which were sent to Mr. Higgins and Mr. Ingersoll ? A. That is all the record of the notices I kept.
“ Q. You kept no record of the notices you sent off ? A. No.”
He is asked: “You have no independent recollection of these particular notices ? A. I have recollection that I sent those off, that is, they have all been sent off according as they came in by me.
“ Q. That is all the recollection you have ? • A. That is all the recollection I have.”

Again clearly showing that the witness had no recollection in respect to the transaction, and was only testifying as to his method •of business.

He is asked how he addressed the letter enclosing the notice to Manley. He says : “I think it was George A. Manley.

“ Q. Is that all ? A I guess the street, number and city.
“ Q. Tell me precisely what it was? A I cannot exactly say just what it was. I know that the notice would read George A. Manley and whatever his-address was.”
And, finally, as his best recollection as to what was written on the envelope, he says: “George A. Manley, 115 Broadway, city. We generally put city on it.
“ Q. You say that because you think that is what it ought to be ? A. I don’t say it from what it ought to be. Of course, that is what I put on. I say I must have put it on ‘ George A. Manley, 115 Broadway,’ as that is the address we got, and the address we got would be the address I would naturally take to put on.”

It appears that there was no such person as George A. Manley; that it was George Manley.

And further on, when asked, “Do you recollect this apart from the other notices sent out that day ? ” he says: “Not particularly apart from the others because I sent them all out.” And when asked what he did with the notices, he says he put them in the tin box alongside of the collection desk; that he generally put them in himself, he would not say that he always did, but if he superscribed them he generally put them in himself. But when asked as to the day or the hour in which this had been done by him, he was entirely unable to say; and his whole testimony in that respect is evidently based upon what the course of business was.

It is true upon redirect examination he said that he knew what those notices were, and as soon as he received them from Connell he immediately mailed them away, which clearly was not the fact, because he admits that he did not do any mailing at all, but only put them in the box alongside the collection desk.

In order to prove the mailing of the-notice the witness Flood was examined, and his testimony was simply to the effect that it was a part of his duty to take charge of the mailing of letters from the Horth River Bank, that he took the letters out of the box,, stamped them, and took them to the post office, but that he had not the slightest recollection of mailing any letters whatever to-Manley. When asked if he knew that he took all the letters he' found in the box he only says: “If there were any letters sent to him that day I took them; there was nobody else to take them.” He did not testify as to any date at the time this answer was-made; he kept' no record of the letters he mailed, and could not. say how many, times he went to the post office on the 26th of January, 1891, or on the 27th, but was only testifying as to his. practice in mailing the letters which he found in the box.

I do not think that upon testimony of this kind the court, ought to hold that the mailing of the notice is established in this, proceeding. It should be left to a jury to determine as to whether any such notice was sent or not.

I think, therefore, that the order appealed from should be affirmed and the motion granted, with leave however upon the part of the receiver of the bank to sue the petitioner upon his endorsement upon the note in question, these proceedings to be no bar to such an action.

Ingraham, J.

I concur with the presiding justice that the-petitioner had a place of business at 115 Broadway, Hew York,, and that a notice of protest mailed to him there was sufficient to charge him as endorser upon the note in question.

I do not think, however, that there should be a new hearing.

The reference was not to hear and determine, but to take testimony as to a question of fact arising upon a motion and to report to the court The testimony has been taken and is now before; the court

It is not suggested that either party has any additional testimony that can aid the court in determining the question and I think it our duty to either affirm the order or reverse the order as the facts require. The only question that it is necessary to discuss, except the one decided by the presiding justice, is whether it is established by the evidence that the notice of protest was-mailed on the 27th day of January, 1891, addressed to the petitioner at his place of business, 115 Broadway, Hew York.

The referee finds that such notice was so mailed, and I think his finding is sustained by the evidence.

Connell, who was in the employ of the receiver, testified that he received the notice of protest from the notary either on the 26th or 27th.of January; that at the time he received the notices-he handed them to his assistant, Robertson ; Robertson swears that, two notices were handed to him by Connell; one addressed to Townsend, the maker of the note, and one- to the petitioner, the-endorser; that he put them in envelopes and addressed them to the respective parties and put them in the letter box. He was-then asked the question: “You recollect sealing them and addressing them and putting them in the box ” to which he answered, “ Yes, sir,” and he remembered it from getting the petitioner’s address from the “ address book ” kept by the bank

Flood, who was a messenger in the employ of the receiver, testified that it was his duty to take the letters from the letter box,, put stamps on them and deposit them in the post office. That, on this day he took all the letters from the letter box, stamped them and deposited them in the post office,, and that he had full charge of the mailing of letters, and it would appear that the. notice of protest to the maker of the note sent at the same time-was duly received by him.

There was not the slightest evidence tending to contradict this testimony, except the fact that the son of the petitioner says that he never received the letter at 115 Broadway, but this does not. overcome the direct evidence before referred to.

It appears that there was no one employed at the office, No. 115 Broadway; that the petitioner’s son was in the habit of coming to the office every day. That when his business called him out of the office he locked the door, and that any letters coming-when he was absent would be put through a slit in the door and fall on the.floor. That a letter coming when Mr. Manley was-absent from the office might have been overlooked on the floor and so swept away and lost is not improbable, and I think on the. evidence before us that the petitioner is liable for the note.

It follows that the order appealed from should be reversed,, with ten dollars costs and disbursements, and the motion denied,, with ten dollars costs and disbursements.

Daniels, J.

I think that the evidence of the witnesses, together with the probability arising out of the mode of transacting the business, supports the conclusion that the notice of the-dishonor of the note was, in fact, properly and legally given. And the order should -be reversed and the motion denied, as directed by Mr. Justice Ingraham.  