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2. If he live in one place, and have his place of business in another, notice may be sent to either place; or

3. If he is sojourning in another place, notice may be sent to the place where he is so sojourning.

But where the notice is actually received by the party within the time specified in this chapter, it will be sufficient, though not sent in accordance with the requirements of this section.

This section was derived from the Negotiable Instruments Law of 1897, § 179.

Address added to signature.-Where the indorser adds an address to his signature, the notice must be sent to that address; and notice not so sent is insufficient unless it is actually received by the indorser within the required time. Century Bank v. Breitbart, (1915) 89 Misc. 308, 151 N. Y. S. 588. The rule seems to have been the same before the enactment of the

Negotiable Instruments Law. Bartlett v. Robinson, (1868) 39 N. Y. 187. Constructive notice when not properly addressed. When it is sought to serve notice of dishonor by mail, but the notice is not properly addressed according to the requirements of this section, the constructive service which arises under section 176 from due mailing, although the notice is not actually received, does not come into operation, and the service is insufficient. 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.

Usual place for receiving letters. Prior to the enactment of the Negotiable Instruments Law, it was held that if a notice of dishonor was sent to the post-office to which the indorser usually resorted for letters, the notice was good, although it was a different town from that in which he actually resided. Reid v. Payne, (1819) 16 Johns. 218, 8 Am. Dec. 311. The notice need not be sent to the post-office in the town or village where the indorser resides, if it is directed to the post office where he usually receives his letters. Montgomery County Bank v. Marsh, (1852) 7 N. Y. 481. It is not indispensable that the notice should be sent to the office nearest the residence of the indorser nor even to the town in which he resides, but it is sufficient if it is sent to the office to which he usually resorts for his letters and where he would probably receive it as soon as at the office nearer to him. Geneva Bank v. Howlett, (1830) 4 Wend. 328.

Place of business different from residence.- Prior to the enactment of the Negotiable Instruments Law, it was the general rule that notices of dishonor might be served either at the indorser's residence or at his place of business. Matter of Mandelbaum, (1913) 80 Misc. 475, 141 N. Y. S. 319, affirmed 159 App. Div. 909, 144 N. Y. S. 1128. See also Geneva Bank v. Howlett, (1830) 4 Wend. 328. Under this section, the notice may be mailed to the indorser's place of business, though he resides at another place. Hussey v. Sutton, (1916) 96 Misc. 552, 160 N. Y. S. 934.

In Matter of Mandelbaum, (1913) 80 Misc. 475, 141 N. Y. S. 319, affirmed 159 App. Div. 909, 144 N. Y. S. 1128, it was thought, though the question does not seem to have been necessarily involved, that under subdivision 2 of this section the notice may be sent to the indorser either at a place of business or his residence when such places are different and that the notice cannot be mailed to the business address where it is in the same town or city as the indorser's residence, though usually such service might be sufficient under subdivision 1 as the customary place for the receipt of the indorser's letters.

Residence. For many years it has been the rule that the notice is sufficiently served on the indorser, where he does not add an address to his

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signature, if it is directed to the place where he actually resides; and the fact that the indorser usually receives his mail at another place does not change this rule. Seneca County Bank v. Neass, (1850) 3 N. Y. 442, wherein it was said: 'Any rule imposing upon the holder a different obligation would be burdensome and materially affect the circulation of commercial paper. The party is deemed to receive his letters through the post-office in the town in which he resides, and if he desired to receive them elsewhere, he should indicate it by affixing the desired direction to his indorsement."

Where the indorser is known to live in the City of New York, the sending of the notice of dishonor to the residence of his father in the city of Albany, where the note was payable, was held insufficient although the indorser had previously resided there. Albany Trust Co. v. Frothingham, (1906) 50 Misc. 598, 99 N. Y. S. 343.

Neither in the case of an indorser of a promissory note nor in the case of the drawer of a bill of exchange is it sufficient to send the notice to the place where the instrument is dated, but the burden is upon the one serving the notice to make diligent inquiry to ascertain where the party resides. Lowery v. Scott, (1840) 24 Wend. 358, 35 Am. Dec. 627. If the holder does not know where the indorser lives, but can acquaint himself by reasonable endeavors, he must do so. Ebling Brewing Co. v. Reinheimer, (1900) 32 Misc. 594, 66 N. Y. S. 458. "In order to charge an indorser, it is not necessary that he should actually receive notice of protest. It is sufficient that such notice has been properly served. If the service be by mail, and the indorser has not indicated where notice may be served upon him by writing the place under his signature on the back of the note, the notice must be addressed to him at his place of residence. But in case the holder does not actually know the indorser's place of residence, the notice may be addressed to the place, where after diligent inquiry he is informed and believes he resides. What is due diligence in such a case, the facts being undisputed or ascertained, is a question of law." Requa v. Collins, (1872) 51 N. Y. 144. Street address.-Where the indorser does not indicate under his indorsement any specific place to which the notice of dishonor shall be sent, the law is complied with by directing it to the city where he resides and serving it through the post-office by depositing the same in the general post-office and prepaying the postage. Webber v. Gotthold, (1894) 8 Misc. 503, 28 N. Y. S. 763. Thus, if the indorser resides in New York City, the notice may be addressed simply to "City of New York." Ebling Brewing Co. v. Reinheimer, (1900) 32 Misc. 594, 66 N. Y. S. 458. But the addressing of a notice to "New York City, New York" is insufficient, where no effort is made to ascertain the residence of the indorser and it does not appear that he resided in such city, and the notice is not received. Fonseca v. Hartman, (1903) 84 N. Y. S. 131. But, if the holder does not rely on the general address of "New York City" and a street address is added, but such street address is erroneous and is not his residence or place of business or a place where he receives letters, the notice is not properly served. Ebling Brewing Co. v. Reinheimer, (1900) 32 Misc. 594, 66 N. Y. S. 458. However, where an indorser resides in the city of New York the fact that the notice is addressed to a certain street address in such city and is not received by the indorser, does not discharge him from liability, where the person serving the notice has exercised due diligence under section 183 to ascertain the actual residence of the indorser. McGrath v. Francolini, (1915) 2 Misc. 359, 156 N. Y. S. 981. If the holder of a note is unable, after using due diligence to ascertain the indorser's residence or place of business, a notice addressed to him at New York City is sufficient, where the note was made and indorsed at New York City and is payable there. Dupont de Nemour Powder Co. v. Rooney, (1909) 63 Misc. 344, 117 N. Y. S. 220.

Change of residence. Where, at the time of the discount of a note by a

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bank, the maker and the indorser both reside at the place where the note is dated and payable, the bank has the right upon the maturity of the note to assume that the indorser still resides in such place unless it has information that such indorser has changed his residence, but information on this point possessed by the notary protesting the note must be deemed the information of the bank. Ward v. Perrin, (1869) 54 Barb. 89. Where it appears that the residence of an indorser has been changed, but the particular time of the change has not been shown, it will be assumed that there has been no change up to the time of the sending of the notice of dishonor. Mohlman Co. v. McKane, (1901) 60 App. Div. 546, 69 N. Y. S. 1046.

Enclosing to one indorser notice for another.-The mere fact that a notice of dishonor intended for a prior indorser was enclosed with a notice to a subsequent indorser, does not render the prior indorser liable. 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. Where the holder of a note does not use due diligence to ascertain the proper address of an indorser, the enclosing of the notice to such indorser in care of the maker and addressed to the residence of the maker, is not sufficient. Dupot de Nemour Powder Co. v. Rooney, (1909) 63 Misc. 344, 117 N. Y. S. 220.

Post-office known by different names.-Where a post-office is known by two different names, the addressing of the notice with the name which is not the legal name, does not render the notice inoperative. Bank of Geneva v. Howlett, (1830) 4 Wend. 382.

Office of corporation in which indorser is interested.-Where a notice of protest was mailed to an indorser at the place of business of a corporation in which such indorser was interested, but no proof is offered that he actually received the notice or that he was accustomed to receive his mail at that place or that it was his place of business, the service is insufficient. Matter of Mandelbaum, (1913) 80 Misc. 475, 141 N. Y. S. 319, affirmed 159 App. Div. 909, 144 N. Y. S. 1128.

§ 180. Waiver of notice. Notice of dishonor may be waived, either before the time of giving notice has arrived, or after the omission to give due notice, and the waiver may be express or implied.

This section was derived from the Negotiable Instruments Law of 1897, § 180.

Necessity of notice of dishonor: see supra, § 160. Waiver of presentment: see supra, § 142. Who are affected by waiver of notice: see infra, § 181. Waiver of protest: see infra, § 182. When notice dispensed with: see infra, § 183. Delay in giving notice excused: see infra, § 184.

In general. The liability of an indorser generally depends upon the implied condition that the instrument shall be duly presented at its maturity and that notice of dishonor shall be duly transmitted to the indorser, but these conditions are for the benefit of the indorser, and hence they may be waived by him. "The waiver may be made either verbally or in writing. It is not necessary that the waiver should be direct and positive. It may result from implication and usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver is intended. Cady v. Bradshaw, (1889) 116 N. Y. 188, 22 N. E. 371, 5 L. R. A. 557. See also to the same effect, Sheldon v. Horton, (1870) 43 N. Y. 93, 3 Am. Rep. 669.

A transaction between the parties to an instrument of which the holder thereof has no knowledge, will not constitute a waiver of the notice of dishonor. Brooklyn First Nat. Bank v. Gridley, (1906) 112 App. Div. 398, 98 N. Y. S. 445.

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Where the indorsers of a note at least two days before its maturity, knowing that default will be made in its payment and that the holder will take the necessary steps to fix their liability as indorsers, asks the holder to wait three or four days to see if they can fix up the note, the indorsers cannot take advantage of the delay to the prejudice of the holder. Bush v. Gilmore, (1899) 45 App. Div. 89, 61 N. Y. S. 682.

Where the holder of a note goes to the indorser and tells him that he wants the note to remain another year and asks him if he is willing, and the indorser says that he is willing and takes the note and looks it over and says that it is a good note, presentment and notice of dishonor are thereby waived. Sheldon v. Horton, (1870) 43 N. Y. 93, 3 Am. Rep. 669. Or, if the indorser calls upon the holder and asks him if he will extend the note for another year if the interest is paid up, and the holder responds that he is willing if the indorser will let his name be on it and let it be as it is, and the indorser is willing to do so, notice of dishonor is waived. Cady v. Bradshaw, (1889) 116 N. Y. 188, 2 N. E. 371, 5 L. R. A. 557.

A conversation between the payee and an indorser of a demand note before a demand has been made, in which conversation the payee informs the indorser of the amount of the maker's then indebtedness and the indorser says that he will see the maker and that if the latter does not make his account good he will " 'go and shut him up," is not sufficient to relieve the holder from the obligation to demand payment and to give notice of dishonor as a prerequisite to the enforcement of the note as against such indorser, for there is nothing in the conversation indicating an intention to waive the requirements of the law. Congress Brewing Co. v. Habernicht, (1903) 83

App. Div. 141, 82 N. Y. S. 481.

Express and implied waivers.-A waiver may be either express or implied. It is express when there is an agreement between the parties to the effect that the holder need not make a demand or give notice of dishonor; it is implied when the acts of the indorser communicated to the holder are such as to give the holder the right to believe that the indorser consents that there shall be no presentment and no notice of dishonor. In the latter case it is held that even though the indorser does not intend so to consent, if the act is such as to lead the holder so to understand, and by reason thereof to forego making demand and giving notice of dishonor, the transaction in law amounts to a waiver. Brooklyn First Nat. Bank v. Gridley, (1906) 112 App. Div. 398, 98 N. Y. S. 445.

Subsequent promise to pay. Where the indorser of an obligation after its maturity, having knowledge of the failure of the holder to serve a notice of the dishonor, promises to pay the amount thereof to the holder, he is deemed to have waived the notice. Porter v. Thom, (1898) 30 App. Div. 363, 51 N. Y. S. 974; Trimble v. Thorne, (1819) 16 Johns. 152, 8 Am. Dec. 302; Duryee v. Dennison, (1810) 5 Johns. 248. See also University Press v. Williams, (1900) 48 App. Div. 188, 62 N. Y. S. 986, reversing 28 Misc. 52, 59 N. Y. S. 817; Tebbetts v. Dowd, (1840) 23 Wend. 379.

"If an indorser, with full knowledge of the laches of the holder in neglecting to protest a bill or note, unequivocally assents to continue his liability, or to be responsible, as though due protest had been made, he is held to have waived the right to object, and will stand in the same position as if he had been regularly charged by presentment, demand and notice. This assent must be clearly established, and will not be inferred from doubtful or equivocal acts or language. It has been frequently held that a promise by an indorser to pay the note or bill, after he has been discharged by the failure to protest it, will bind the indorser, provided he had full knowledge of the laches when the promise was made." Ross v. Hurd, (1877) 71 N. Y. 14, 27 Am. Rep. 1. "The rule is that as against an indorser, plaintiff must prove demand and notice, but by proving the indorser's promise to pay after maturity this proof is prima facie supplied, and if the indorser rebuts this

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proof by showing laches in respect to the demand and notice, then the plaintiff makes sufficient rejoinder by showing that the indorser had knowledge of the laches when he promised to pay." Harral v. Sternberger, (1896) 17 Misc. 274, 40 N. Y. S. 353.

The promise of an indorser in order to constitute a waiver must be made deliberately in clear and explicit language and must amount to an admission of the right of the holder or of the duty and willingness of the indorser to pay; or, if the waiver is implied from the conduct or acts of the indorser, it must clearly import a like admission of duty. Baer v. Leppert, (1878) 12 Hun 516. It must be shown that the indorser when he made the promise knew that he had not received due notice of dishonor. Trimble v. Thorne, (1819) 16 Johns. 152, 8 Am. Dec. 302.

Indorsement of renewal note.-Where accommodation indorsers on a note a few days before its maturity indorse a renewal note, they are deemed to have waived notice of dishonor of the original note. Friendship First Nat. Bank v. Weston, (1898) 25 App. Div. 414, 49 N. Y. S. 542.

Part payment.-Where an indorser, knowing that notice of dishonor has not been properly served on him, makes a part payment after the dishonor of the instrument, he is deemed to have waived requirement. Brown v. Mechanics,' etc., Bank, (1897) 16 App. Div. 207, 44 N. Y. S. 645. See also Weil v. Corn Exch. Bank, (1909) 63 Misc. 300, 116 N. Y. S. 665. Where, after the dishonor of a draft, the drawer has knowledge of the situation and makes a payment thereon and promises to pay the balance, he is deemed to have waived any defect in the presentation or notice of dishonor. Linthicum v. Caswell, (1897) 19 App. Div. 541, 46 N. Y. S. 610, affirmed on opinion below (1899) 160 N. Y. 702, 57 N. E. 1115. But the waiver of notice of dishonor of a demand note is not established by the mere payment of interest on the note, disassociated from other facts, as such a payment is perfectly consistent with the belief that the instrument is a continuing security and has not been presented for payment. Porter v. Thom, (1898) 30 App. Div. 363, 51 N. Y. S. 974.

Property transferred by maker to indorser to secure latter.-Though it may be that a transfer of property by a maker of a note to the indorser thereof, before its maturity, to secure the indorser, may excuse due presentment and notice of dishonor, the transfer by the maker to a third person as security for the indorser, where the transfer is without the knowledge of such indorser and is not accepted by or acquiesced in by him, does not avoid the necessity of taking such steps to charge the indorser. Moore v. Alexander, (1901) 63 App. Div. 100, 71 N. Y. S. 420.

The fact that the maker of a note executes a chatted mortgage to the indorser thereof, does not excuse the holder from presenting the note at maturity and giving notice of dishonor to the indorser. Binghamton First Nat. Bank v. Baker, (1914) 163 App. Div. 72, 148 N. Y. S. 372. See also Gawtry v. Doane, (1866) 48 Barb. 148, affirmed (1872) 51 N. Y. 84.

Corporation. The secretary of a corporation may have the authority to waive notice of dishonor and bind the corporation as an indorser on notes thereafter maturing. Ludington v. Thompson, (1896) App. Div. 117, 38 N. Y. S. 768, affirmed (1897) 153 N. Y. 499, 47 N. E. 903.

Where the corporation maker of a promissory note is adjudicated a bankrupt before the maturity of the obligation, and the adjudication is based to some extent upon the admissions of an officer thereof, who is an indorser on the note, such indorser must know that when the note falls due the corporation cannot pay it, and under the circumstances he will be deemed to have waived notice of dishonor. O'Bannon Co. v. Curran, (1908) 129 App. Div. 90, 113 N. Y. S. 359. It is not necessary to give notice of dishonor to the indorser of a corporate note, when the indorser is the officer of the corporation who signed the note on its behalf and to whom presentment is made, and he knew that the note could not be paid at its maturity. William S. Merrell Chemical Co. v. Root, (1915) 152 N. Y. S. 368.