
    The First National Bank of Lowville, App’lt, v. George D. Moffatt, Impl’d, Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    Bills and notes—Pbotest.
    In the absence of proof of laches, an unconditional promise on the part of an endorser of negotiable paper to pay, an acknowledgment of the debt or a part payment by him, is presumptive evidence that he had been properly notified, and is sufficient to carry the case to the jury.
    Appeal from a judgment entered in Lewis county December 10, 1890, upon a nonsuit granted at the Lewis circuit upon a trial before the court and a jury.
    Action upon two notes made by M. M. Noble to the order of and endorsed by the defendant Moffatt, payable two months from date at the bank of the plaintiff, one for $700, dated September-18, 1886, and the other for $500, dated October 8, 1886.
    The endorser Moffatt alone defended, denying presentment and notice, and alleging that the estate of William McCulloch and not the plaintiff was the owner in fact of the note. The nonsuit was granted upon the ground that the evidence was not sufficient to charge-the defendant Moffatt as endorser.
    
      C. S. Mereness, for app’lt; Merrell, Ryel & Merrett, for resp’t.
   Merwin, J.

—The only important question in this case for us to consider is whether the evidence was sufficient to require the-submission to the jury of the question whether the proper notice-was given to the respondent of the presentment and non-payment, of the notes. The demand and refusal were, as the court held,, sufficiently proved. The teller of the bank testified as to each note that, when it became due and was not paid, it was handed to Mr. McCulloch, who was the cashier of the bank and was a notary, and was accustomed' to attend as such to the protesting of notes and the mailing of the proper notices.' Upon th,e back of each note there is in the handwriting of McCulloch.the word “protested” and the date and the initial “M.” No other certificate of protest appears nor any other entry of the notary. Mr. McCulloch died, in November, 1887.

Prior to May, 1887, Noble, the maker of the notes, made a general assignment, in which Moffatt was preferred on account of the endorsement of these notes. On the 26th May, 1887, Moffatt made out, verified and presented to the assignee his claim under this preference, the amount claimed being the amount of these notes, including interest and protest fees. There is also evidence showing that in September or October, 1888, Moffatt said to the party who then had the notes for collection that he wanted the notes paid, but wished to wait until after Noble’s estate was closed up; that whatever came from that estate would be applied on the notes, and he would provide for the balance if there was any deficiency ; also that in July, 1889, he said, in reference to the notes, that the notes v^ould be paid ; that he would pay them. About this time Moffatt received from the assignee of Noble, upon the closing up of the estate, a dividend of $97.08, and this he paid upon the notes. There was also negotiation between him and the-party acting for the bank as to how the balance should be secured, but nothing was effected.

In Tebbetts v. Dowd, 23 Wend., 379, it was held that where the holder of negotiable paper has been guilty of laches, and that fact appears on the trial in an action against an endorser or drawer, the holder cannot recover on a subsequent promise without showing that the promise was made with full knowledge of the laches ; but where the fact of laches does not appear, a promise by an endorser or drawer after maturity to pay the note or bill is presumptive proof of demand and notice. The theory is said to be that presumptively a man will not promise to pay without knowing that-he is liable. The evidence is received for the purpose of showing that there has been no laches. In Meyer v. Hibsher, 47 N. Y., 273, it is said in regard to such a promise that, had there been no proof at all of the manner of presentment and demand, this promise of the appellant would be presumptive evidence of a legally formal demand and notice. To the same effect is Lewis v. Brehme, 33 Md., 433 ; Jones v. O'Brien, 26 Eng. L. & Eq., 283; Edwards on Notes and Bills, 652; Daniel on Neg. Instr., § 1156. In Hyde v. Stone, 20 How., U. S., 175, it is said that proof of a direct or conditional promise to pay after a bill becomes due, of a partial payment, or of an offer of a composition, or of an acknowledgment of his liability to pay the bill, has been held to be competent evidence to go to a jury of a regular notice of the dishonor of a bill, and to warrant a jury in presuming that-a regular notice-had been given; citing many cases. In Parsons on Bills and Notes, vol. 2, p. 497, the rule is said to be that an admission by the defendant of his liability, as by part payment, or by a promise-to pay, supersedes the necessity of proving a protest or notice.

In the present case there was no proof of laches. The plaintiff had alleged, and was seeking to prove, protest and notice to the-endorser. Evidence was given tending to show an unconditional promise to pay, an acknowledgment of the debt, a part payment. The point was as to the effect or force to be given to this evidence. Very clearly, under the authorities above referred to, it was presumptive evidence that the endorser had been properly notified, and was sufficient to carry the case to the jury.

The defendant seeks to sustain the nonsuit on the ground that the notes after they became due were transferred by the bank to Mr. McCulloch and afterward retransferred by the executor of his estate to the plaintiff and that plaintiff had no right to take such retransfer. Upon the facts before us, it cannot be said, as-matter of law, that such transfers were made. If they were, it would at least be very doubtful whether it would be a defense available to the defendant. The Rider Life Raft Co. v. Roach, 97 N. Y., 378; Atlantic State Bank v. Savery, 82 id., 292. There was no plea of ultra vires.

Martie, J., concurs.

Hardie, P. J.

—I concur in the foregoing opinion. There are cases in which a recovery may be had against an endorser, though no notice was given of the demand and refusal. Clift v. Rodger, 25 Hun, 41. Whether this is such an one can be determined upon a new trial.

I agree to a reversal.

Judgment reversed and new trial ordered, costs to abide the event  