L. 1909, ch. 43 Notice of Dishonor §§ 170, 171 Notice to one of several executors or administrators. Where there are several executors or administrators of an estate, notice to one of the dishonor of paper of the deceased is sufficient to bind the estate, for several co-executors or co-administrators are regarded as representing one and the same interest. Beals v. Peck, (1851) 12 Barb. 245. Mailing notice addressed to deceased. Prior to the enactment of the Negotiable Instruments Law, it was held that where one giving notice of the dishonor of a note knew that the indorser was dead, the service of the notice by putting it in the post-office directed to the deceased, was insufficient. Cayuga County Bank v. Bennett, (1843) 5 Hill 236. But where the holder of the note had no knowledge of the death of the indorser, it was held that a notice of protest directed in form to the indorser as if he were living and addressed to the place where he resided at the time of his death, was sufficient. Beals v. Peck, (1851) 12 Barb. 245. Where the indorser had died before the maturity of the note, it was held that a notice was sufficient which was enclosed in an envelope and addressed to the "estate of " of such indorser together with the place of his residence. Fort Jefferson Bank v. Darling, (1895) 91 Hun 236, 36 N. Y. S. 153. In Deininger v. Miller, (1896) 7 App. Div. 409, 40 N. Y. S. 195, it was held, under an early act authorizing service generally by mail, that a notice deposited in the postoffice addressed to a deceased indorser was sufficient to bind his estate. Under the Canadian Bills of Exchange Act, relative to the service of a notice of dishonor on a deceased indorser, which contains a provision substantially of the same import as this section, it has been held that a notice of dishonor mailed to an indorser known to be dead, directed to a post-office known to be one at which he did not receive his mail when living, is not a good notice. Merchants' Bank v. Brown, (1903) 86 App. Div. 599, 83 N. Y. S. 1037. Informal notification of executor.- The notice of dishonor is not sufficient, where the holder merely, in a very informal and casual manner some ten or eleven days after its maturity, notifies one of the executors of the non-payment of the note and about ten days thereafter notifies the other executor. Deininger v. Miller, (1896) 7 App. Div. 409, 40 N. Y. S. 195. § 170. Notice to partners. Where the parties to be notified are partners notice to any one partner is notice to the firm even though there has been a dissolution. This section was derived from the Negotiable Instruments Law of 1897, § 170. Presentment of partnership note: see supra, § 137. Service on partner. In the case of two or more joint indorsers who are partners, a notice of protest served on one is sufficient to charge them all, and the reason for this rule is that each partner represents the interests of the others and of the partnership. Beals v. Peck, (1851) 12 Barb. 245. Dissolution of partnership.- Service of notice of protest on one partner is sufficient to bind the firm, though the partnership has been dissolved by Hubbard v. Matthews, (1873) 54 N. Y. 43, 13 Am. Rep. 562. war. § 171. Notice to persons jointly liable. Notice to joint parties who are not partners must be given to each of them, unless one of them has authority to receive such notice for the others. This section was derived from the Negotiable Instruments Law of 1897, § 171. $$ 172-174 Notice of Dishonor L. 1909, ch. 43 Notice of partners: see supra, § 170. Presentment to joint debtors: see supra, § 138. Joint indorsers not partners.- In the case of joint indorsers who are not partners, notice of dishonor should be given to each of them sought to be charged. Beals v. Peck, (1851) 12 Barb. 245. § 172. Notice to bankrupt. Where a party has been adjudged a bankrupt or an insolvent, or has made an assignment for the benefit of creditors, notice may be given either to the party himself or to his trustee or assignee. This section was derived from the Negotiable Instruments Law of 1897, § 172. When notice not required.-Where the maker and indorser of an instrument are partners, and, individually and as partners, they are adjudicated bankrupts, and the same trustee is appointed for both the firm and the members thereof, notice to the trustee of the dishonor of the instrument is not required in order that the holder shall have a claim against the estate of the indorser. Matter of McIntyre, (1912) 198 Fed. 579. § 173. Time within which notice must be given. Notice may be given as soon as the instrument is dishonored; and unless delay is excused as hereinafter provided, must be given within the times fixed by this chapter. This section was derived from the Negotiable Instruments Law of 1897, § 173. Necessity of notice in general: see supra, § 160. Time when parties reside in the same place: see infra, § 174. Time when parties reside in different places: see infra, § 175. Excuse of delay in giving notice: see infra, § 184. Earlier service possible. If a notice of dishonor is served within the time required by sections 174 and 175, it is sufficient, though greater diligence might have been exercised and the notice served at an earlier time. Smith v. Poillon, (1882) 87 N. Y. 590, 41 Am. Rep. 402. Cited.-German-American Bank v. Milliman, (1900) 31 Misc. 87, 65 N. Y. S. 242. § 174. Where parties reside in same place. Where the person giving and the person to receive notice reside in the same place, notice must be given within the following times: 1. If given at the place of business of the person to receive notice, it must be given before the close of business hours on the day following; 2. If given at his residence, it must be given before the usual hours of rest on the day following; 3. If sent by mail, it must be deposited in the post-office in time to reach him in usual course on the day following. This section was derived from the Negotiable Instruments Law of 1897, § 174. L. 1909, ch. 43 Notice of Dishonor § 175 Time of notice when parties reside in different places: see infra, § 175. When delay is excused: see infra, § 184. Giving notice by mail: see supra, § 167, infra, §§ 176, 177. Notice two days after dishonor.-Where notice of dishonor is not given until two days after the dishonor of the instrument, it is generally insufficient. Soloman v. Cohen, (1905) 94 N. Y. S. 502. Thus, where two days after the dishonor, the last indorser thereof took the same from the bank with which it had been placed for collection and delivered notice of protest thereof to a prior indorser, it was held that the prior indorser was not bound. Hirt v. Vincent, (1894) 9 Misc. 87, 29 N. Y. S. 61. But where the holder of a check indorses the same and deposits it in a bank for collection and two days thereafter, immediately after receiving notice of dishonor, he notifies a prior indorser of its dishonor, the notice is sufficient, for under this section the bank has until the day following the dishonor to give notice, and under section 178 the indorser has until the day following notice to him in which to give notice to a prior indorser. Jurgens v. Wichmann, (1908) 124 App. Div. 531, 108 N. Y. S. 881. Where a notice of dishonor is not mailed until two days after the dishonor of the instrument and is not received by the indorser until three days thereafter, and the parties reside in the same place, any presumption that the notary used due diligence in obtaining the proper address of the indorser and mailing the notice thereto is overcome. Siegel v. Dubinsky, (1907) 56 Misc. 681, 107 N. Y. S. 678. Close of business hours.-The provision of this section allowing the notice to be given at the indorser's place of business "before the close of business hours on the day following," permits the notice to be given until five o'clock in the afternoon of such day in the winter season. Wilson v. Peck, (1910) 66 Misc. 179, 121 N. Y. S. 344. Loss of note.-Although the loss of the note may be a sufficient excuse for the failure of the holder to present and exhibit the same to the maker, it does not excuse his failure to give notice of dishonor within the time prescribed by this section. Klotz v. Silver, (1911) 127 N. Y. S. 1090. Cited. Cassel v. Regierer, (1908) 114 N. Y. S. 601. $ 175. Where parties reside in different places. Where the person giving and the person to receive notice reside in different places, the notice must be given within the following times: 1. If sent by mail, it must be deposited in the post-office in time to go by mail the day following the day of dishonor, or if there be no mail at a convenient hour on that day, by the next mail thereafter. 2. If given otherwise than through the post-office, then within the time that notice would have been received in due course of mail, if it had been deposited in the post-office within the time specified in the last subdivision. This section was derived from the Negotiable Instruments Law of 1897, § 175. Notice where parties reside in same place: see supra, § 174. Notice by mail: see supra, § 167 and infra, §§ 176, 177. When notice dispensed with: see infra, § 183. When delay excused: see infra, § 184. Prior rule. The rule in force before the enactment of the Negotiable Instruments Law was substantially the same as under the statute, to the $176, 177 Notice of Dishonor L. 1909, ch. 43 effect that if the parties reside in different places the notice of dishonor must be posted not later than the first practical and convenient mail of the day following the dishonor. Smith v. Poillon, (1882) 87 N. Y. 590, 41 Am. Rep. 402. As early as 1822, in Robinson v. Ames, (1822) 20 Johns. 146, 11 Am. Dec. 259, it was held that notice of protest was sufficient if sent by mail the next day after the protest. Cited. Jurgens v. Wichmann, (1908) 124 App. Div. 531, 108 N. Y. S. 881; Metropolitan Bank v. Engel, (1901) 66 App. Div. 273, 72 N. Y. S. 691; Mohlman Co. v. McKane, (1901) 60 App. Div. 546, 69 N. Y. S. 1046. § 176. When sender deemed to have given due notice. Where notice of dishonor is duly addressed and deposited in the postoffice, the sender is deemed to have given due notice, notwithstanding any miscarriage in the mails. This section was derived from the Negotiable Instruments Law of 1897, § 176. Authority to send notice by mail: see supra, § 167. Time within which notice shall be mailed: see supra, §§ 174, 175. What constitutes deposit in post-office: see infra § 177. Necessity that notice be duly addressed. In order that a constructive service under this section be sufficient when it is not actually received by the indorser, it is essential that the notice be “duly addressed," according to the provisions of section 179. McGrath v. Francolini, (1915) 92 Misc. 359, 156 N. Y. S. 981; Century Bank v. Breitbart, (1915) 89 Misc. 308, 151 N. Y. S. 588. Thus, if the indorser has added an address to her signature, if the notice is not addressed to such place, it is not duly addressed. Century Bank v. Breitbart, (1915) 89 Misc. 308, 151 N. Y. S. 588. Nor is it duly addressed where no place of address is given on the envelope. Deininger v. Miller, (1896) 7 App. Div. 409, 40 N. Y. S. 195. Instructions to jury.- In an action by the holder against the indorser of a note, it is error to refuse to charge that it is not necessary for an indorser actually to receive notice of protest and that the mere deposit of a notice in a postpaid wrapper in the post-office addressed to the indorser is sufficient. State Bank v. Soloman, (1903) 84 N. Y. S. 976. Mailed to care of another party.-A notice mailed to an indorser in care of another party to the note is insufficient, where there is no evidence from which it can be presumed that the indorser was at the residence of such party or at such address and the notice does not contain the reputed residence of such indorser. Siegel v. Dubinsky, (1907) 56 Misc. 681, 107 N. Y. S. 678. Evidence admissible of non-receipt.-While the non-receipt of the notice of dishonor, provided it has been duly mailed, does not exonerate the indorser from liability, yet the indorser is entitled to show the non-receipt, for the evidence is competent on the question whether there was an actual mailing. Union Bank v. Deshel, (1910) 139 App. Div. 217, 123 N. Y. S. 585. See also to the same effect: Townsend v. Auld, (1894) 10 Misc. 343, 31 N. Y. S. 29. $177. Deposit in post-office; what constitutes. Notice is deemed to have been deposited in the post-office when deposited in any branch post-office or in any letter box under the control of the post-office department. This section was derived from the Negotiable Instruments Law of 1897, L. 1909, ch. 43 Notice of Dishonor §§ 178, 179 Private receptacle.-The placing of a notice of dishonor in a receptacle in a private office, without further evidence of its fate, is not equivalent to a deposit in the post-office. Townsend v. Auld, (1894) 10 Misc. 343, 31 N. Y. S. 29. Letter chute.-A notice of dishonor is sufficiently mailed when it is deposited in a letter chute under the control of the Post-office Department. Wilson v. Peck, (1910) 66 Misc. 179, 121 N. Y. S. 344. Letter boxes. Under the prior statute which provided for the deposit of notices of dishonor in the post-office, it was thought that by a liberal construction of the terms of the statute letter boxes placed about a city for the reception of mailable matter could be regarded as the post-office for that purpose. Greenwich Bank v. DeGroot, (1876) 7 Hun 210. § 178. Notice to antecedent party; time of. Where a party receives notice of dishonor, he has, after the receipt of such notice, the same time for giving notice to antecedent parties that the holder has after the dishonor. This section was derived from the Negotiable Instruments Law of 1897, § 178. Time of notice in general: see supra §§ 174, 175. When delay is excused: see infra, 184. Enclosing to subsequent indorser notice for prior indorser.—The testimony of notary protesting a note to the effect that he, not knowing the address of a prior indorser, enclosed the notice to a subsequent indorser with postage for forwarding the same to the prior indorser, is not sufficient to enable the holder to maintain an action against such prior indorser, in the absence of proof that the subsequent indorser forwarded the notice to the prior indorser. Fuller Buggy Co. v. Waldron, (1906) 112 App. Div. 814, 99 N. Y. S. 561, affirmed without opinion, (1907) 188 N. Y. 630, 81 N. E. 1165. See also Dupont de Nemour Powder Co. v. Rooney, (1909) 63 Misc. 344, 117 N. Y. S. 220. Duty of collecting bank.---Where a bank receives a note for collection from an indorser thereof, it fulfills its duty in giving notices of dishonor if it gives such notice to the immediate party indorsing the note to it, and it is not liable to such indorser because it fails to give notice to a prior indorser, for it is the duty of the immediate indorser under this section to give such notice. Brill v. Jefferson Bank, (1913) 159 App. Div. 461, 144 N. Y. S. 539. Timely notice.-Where the holder of a check indorses the same and deposits it in the bank for collection and two days thereafter, immediately after receiving notice of dishonor from the bank, he notifies a prior indorser of the dishonor, the notice is sufficient, for by sections 174 and 175, the bank has until the day following the dishonor to give the notice, and by this section the indorser has until the day following to give notice to a prior indorser. Jurgens v. Wichmann, (1908) 124 App. Div. 531, 108 N. Y. S. 881. § 179. Where notice must be sent. Where a party has added an address to his signature, notice of dishonor must be sent to that address; but if he has not given such address, then the notice must be sent as follows: 1. Either to the post-office nearest to his place of residence, or to the post-office where he is accustomed to receive his letters; or |