Lawrence v. Miller.

business of the former for the purpose of obtaining information, and did not succeed in finding him.

But upon the supposition that the residence of the defendant was unknown to the plaintiff, inquiry should have been made of the makers. Due diligence required that this should be done. (Chitty on Bills, Sth Am. from Sth London cd., 525; Bank of Utica v. Davidson, 5 Wend., 587; Same v. Bender, 21 id., 643; Same v. De Mott, 13 John., 432; Catskill Bank v. Stall, 15 Wend., 364; Lowry v. Scott, 24 id., 358; Bayley on Bills, 280–283, ch. 7, § 2, 5th ed.) It does not appear where the maker resided; but the fact that the note was dated and payable in the city of New-York is some evidence that he resided there, although no evidence of the residence of the indorser. (Lowry v. Scott, 24 Wend., 358; Spencer v. Bank of Salina, 3 Hill, 520.)

It is not to be supposed that the plaintiff took the note without knowing anything of either of the parties thereto. I think the judgment of the Supreme Court should be affirmed

DENIO, Ch. J. The coincidence that a person of the same name with this indorser resided in the city of NewYork was calculated to mislead the notary, and it goes far to exonerate him from moral blame. It was, however, no fault in the defendant, the indorser. There is no evidence that it was known to him, and, if it had been, it is not easy to see how he could have remedied it. He could, it is true, have added his residence to his name on the back of the note, but he was not obliged to do so; and if the person and place of abode were known to the plaintiff, his immediate indorsee, as in the absence of proof it is presumed to have been, he might safely rely upon having the notice properly sent, though he took no special means to prevent a mistake. The fact that the note was dated in New-York was slight evidence that the maker resided there, but none that it was

Lawrence v. Miller.

the residence of the indorser. (Spencer v. The Bank of Salina, 8 Hill, 520.)

In the currency which the necessities of business and the policy of the law give to bills and notes, they frequently come to the hands of persons who are unacquainted with the prior parties, with whom they have had no transaction. In such a case the holder is not charged with knowledge of their residence, and is not bound to ascertain it at his peril. It is sufficient if he make diligent inquiry in good faith, and send the notice accordingly. There may be cases where the holder does not know the residence of his immediate indorser, and, where this is shown, due inquiries may excuse a notice. Baldwin v. Richardson (1 Barn. & Cress., 245) was such a case. But this defendant dealt immediately with the plaintiff, and in the natural course of such transactions they would know each other. The plaintiff does not give any information to the notary, who goes to work in the dark, and finding in the New-York directory the name of John B Miller, puts the notice under the door of his office; the defendant, in the mean time, being openly and notoriously at Williamsburgh, and, for aught that is shown, with the full knowledge of the plaintiff. This was not, I think, a case for the application of the doctrine of diligence. That is allowed to supply the place of a notice correctly sent, only from necessity. Where the holder knows the party to be charged, and his residence, no diligence is required, and any amount of that virtue will not answer as a substitute for a notice.

But if it were a case for the exercise of diligence, an inquiry should have been made of some one who knew the defendant, or it should have been proved that no person acquainted with him could be found. The fact that the plaintiff was absent from his place of business, for the moment, did not dispense with an inquiry from him. It does not appear that the bank officer of whom the notary inquired knew the defendant or had ever heard of him. He SMITH.-VOL. II.

31

ones v. Derby.

knew, from looking at the directory or otherwise, that a certain John B. Miller had an office at No. 2 Hanover-square. Both thought this was the man they were looking for, but that was an error, which, though it may excuse the notary, does not charge the defendant.

The judgment should be affirmed.

All the judges concurring,

Judgment affirmed.

JONES and others v. DERBY.

An order of the Supreme Court, made at general term, setting aside a judgment and execution thereon for irregularity, but giving no direction in respect to the previous proceedings in the action, is not the subject of an appeal to the Court of Appeals on the ground that it "determines the action and prevents a judgment from which an appeal might be taken," although the irregularity alleged by the defendant consisted in the service of the summons in pursuance of a chamber order, so that if he were right no action was ever commenced. The chamber order not having been set aside, the action is to be deemed well commenced and still pending.

APPEAL from an order of the Supreme Court, made at general term in the first district, setting aside the judgment in the action and the execution issued thereon. To the summons issued in the action, the sheriff of the city and county of New-York made return that he had made diligent effort to serve the defendant in his county with the summons, and that he could not be found; that on application at the place of business of the defendant, in the city of New-York, he ascertained that the defendant was a resident of said city, but was then absent temporarily therefrom, and was a householder in the city, where his family resided; and that therefore he returned the defendant as not found. Upon

Jones v. Derby.

this return, and an affidavit of one of the plaintiff's attorneys, showing that the defendant was a resident and housekeeper in the city of New-York, where his family was, and that he was absent in the State of California, temporarily, and was not expected to return within four or five months, and that he had left his business in the city in the charge of an agent, a justice of the Supreme Court made an order directing a substituted service of the summons, pursuant to the act of June 30, 1853 (Laws of 1853, 974), and the service having been made accordingly, and the defendant not having appeared or answered, after the expiration of twenty days judgment was perfected for the amount claimed in the summons and costs, and execution issued thereon. The judgment was entered February 24, 1855; and on the twenty-eighth of February, upon an affidavit reiterating the facts contained in the sheriff's return and in the affidavit on which the order for a substituted service was made, and further alleging that the defendant was expected to return from California in the month of March then next, and that the execution on the judgment had been levied on a store of goods of the defendant, a justice of the Supreme Court made an order that the plaintiffs show cause, before a justice of the court, at chambers, on the fifth of March, why the judgment and execution should not be set aside for irregularity. On the return day named in the order, the justice in attendance, after hearing the counsel of the parties, ordered that the motion be referred to the general term of the court, and pursuant to this order the general term heard the motion, and made an order setting aside the judgment and execution, and the appeal to this court is from this order of the general term.

Nicholas Hill, for the appellants.

John H. Reynolds, for the respondent.

Jones v. Derby.

BOWEN, J. If an appeal to this court can be taken from the order of the Supreme Court setting aside the judgment in the action, the authority for it must be found in the second subdivision of section eleven of the Code, as it has been held that the third subdivision applies only to orders in proceedings based upon and which assume the validity of the judgments in the actions in which the orders are made. (Humphrey v. Chamberlain, 1 Kern., 274; Dunlop v. Edwards, 3 Comst., 341.)

The second subdivision gives this court jurisdiction to review upon appeal every determination made by the Supreme Court at general term, "in an order affecting a substantial right, made in such" (an) "action, when such order in effect determines the action and prevents a judgment from which an appeal might be taken." The motion, on the decision of which the order in question was made, was to set aside the judgment and execution for irregularity, and the judgment and execution only were set aside, leaving the other proceedings in the action unaffected. If the action had ever been commenced, the order left it pending and undetermined. It did not, in effect or otherwise, determine the action. But it is insisted that the judgment was set aside on the ground that the service of the summons was a nullity, and that such was the decision and is now the law of that court, and that no proceedings can be predicated on the service of the summons until the decision is reversed, and consequently that a judgment in the action is prevented. To render the argument, if sound, of any avail to the plaintiffs, it must be assumed that the service of the summons was sufficient to bring the defendant into court, or to authorize the judgment, as, if otherwise, the decision of the court was right and should be affirmed. The service of the summons was by the authority and pursuant to the directions of the chamber order, made, or purporting to be made, under the act of 1853, and that order was not set aside by the general term, but remains in full force; and if it was authorized by the proof before the