Holtz v. Boppe

Holtz v. Boppe. Presentment to charge indors&rs. If, in a promissory note, no place of payment he specified, it is sufficient, in order to charge an indorser, that due and reasonable diligence be used, •without success, to ascertain the residence or place of business of the makers; the note may then be protested for non-payment, and notice thereof given to the indorser. Appeal from the general term of the Supreme Court, in the first district, where a judgment entered in favor of the plaintiff, upon the report of a referee, had been affirmed. This was an action by Christian F. Holtz against John A. Boppe, as indorser of a promissory note made by Hartman & Ilch, payable six months after date. The only question was, whether there had been a due presentment and demand of payment upon the makers, so as to charge the defendant. The case was tried before a referee who, upon this point, found the following state of facts: Prior to the 26th of October 1860, the makers resided and carried on business at No. 622 and 624 Broadway, in the city of New York; and on or about that day, they hired the basement of the building at the corner of Bowery and Division street, in said city, for the purpose of carrying on business there; removed a portion of their furniture and property to that place, and occupied it for a month, and partially fitted up the premises for their business. Before the 3d of November, on which day the note fell due, they informed the plaintiff, they were about to remove to the said basement, and they were seen there by the .plaintiff, before that day. A few days only before the note fell due, both the makers changed their private residences, one of them moving twice between the 23d of October and the 5th of November. The plaintiff lived at Hoboken, in New Jersey, and it did not appear that he had any knowledge of these changes of residence, or that he was .apprised of anything but the fact communicated to him by the makers, in the presence of the defendant, that they had removed their place of business to the basement aforesaid. *The person who made the demand, having received instructions to that effect, went with the note, on the day it fell due, to the basement on the corner of Bowery and Division street, and found it closed and ho person therein. He then made inquiry, in the vicinity, for.the makers, but was unable to find them, or either of them. From thence he went immediately to No. 622 and 624 Broadway, where the sign of the firm was still up, and made inquiry there, and in the vicinity, but could not find them, or either of them, or any person to answer for them, or obtain any information in respect to their residence, or the place to which they had removed. He then protested the note, stating that, after diligent search, he was unable to find the makers, and sent due notice to the defendant; by mail, at- his place of residence. Upon this state of facts, the referee found as a conclusion of law, that the note was duly presented for payment, and notice given, and he directed a judgment in favor of the plaintiff, for the amount of the note, with interest; which having been affirmed at general term, the defendant appealed to this court. Black, for the appellant. Glassey, for the respondent. [MAJORITY — Bacon, J.] Bacon, J. The only question presented by this case is, whether the defendant was properly charged as indorser of the note in suit, by a due presentment and demand of payment of the same of the makers. The note was made by Hartman & Ilch, who were partners in business, and was payable six months after date, but specifying no place of payment. The demand of payment was, consequently, required to be made of the makers, personally, or at their dwelling-place or place of business. (Story on Bills of Exchange, § 362; Taylor v. Snyder, 3 Denio 145.) On the subject of the demand, the referee finds the following facts. We assume the facts, as settled by the report—do not look out of it, to find any other state of facts than such as are found by him: (The learned judge here stated the findings of the referee.) Assuming these facts, as we do, from the findings of the referee (and they are amply sustained by the evidence), I think, his conclusion was entirely right. The rule that requires a demand, in such a case, to be made personally, or at the residence or place of business of the makers, is satisfied, if due and reasonable diligence is used to ascertain such residence or place of business. In this case, such diligence seems to me to have been employed. The makers of the note, by their own statement to the holder of the note, located themselves at the basement designated by them. They, in fact, vacated *the premises theretofore occupied by them, and were, on the 3d of November, so far as they were carrying on business at all, in the use and occupation of the basement at the corner of Bowery and Division street. In addition to a demand at this place, the notary also called at the former place of business and residence of the makers, and at both places, and in the vicinity of each, made inquiries for the parties; from which he could derive no information as to the whereabouts of either of them. I do not well see what greater diligence he could have employed. A search in the directory would have been of no avail, since the change of residence had been so recent, that it would have afforded no aid; and if the inquiry and search had been limited to the directory, it would clearly have been insufficient. (Packard v. Lynn, 5 Duer 82.) I am unable to perceive any track of inquiry or investigation that could have been pursued, that would have been rewarded by a discovery of the 'then actual residences of these parties; and am of opinion, that all the diligence the case called for, or the law exacts, was employed by the notary in making the demand of payment. The judgment should be affirmed. Judgment affirmed. Mason, J., dissented.