Opinion
Argued February 9, 1893
Decided February 28, 1893
John Gillette for appellant.
Edwin Hicks for respondent.
The complaint involved in this appeal respects the ruling of the court, which determined, as matter of law, that due diligence had not been exercised in giving notice of protest to the indorser, and refusing to submit the question, as one of fact, to the decision of the jury. The General Term sustained the ruling, and we are inclined to approve it, as justified by the facts.
The indorser lived in the town of Hopewell, and his postoffice address was at Chapinville in that town. He had resided in the same place for nineteen years, and at the time of the maturity of the note was supervisor of his town, which adjoined the village of Canandaigua, and had held that office for two years. His home was four miles east of the east line of the village, and the notary who served the notice had been at his house and consequently knew of its location. He knew also that the indorser was supervisor of the town of Hopewell, and had mailed a notice of protest of a note preceding the one in suit, and of which the latter was a renewal, to the same indorser at Chapinville. Inquiry of the maker of the note; at the postoffice in Canandaigua; or of business men in that village; would have disclosed the residence of the indorser easily and correctly. What the notary did was to mail a notice directed to the indorser at Canandaigua, under the provisions of the act of 1857 (Chap. 416, § 3), which permits such notice by mail where the indorser lives in the same city or town, or has a place of business therein, or has indicated such residence by a memorandum added to his signature, or where, "from the best information obtained from diligent inquiry," he is "reputed" there to reside or have a place of business. We may assume that the notary may have forgotten for the moment his previous action in mailing a notice to Chapinville, and was in doubt about the residence of the indorser, although with the knowledge which he had and some reasonable reflection upon the subject it would seem that his memory might not have failed him, but his only effort to solve the doubt was to look into a directory of Canandaigua to ascertain the truth. He there found this entry: "Hanna, Morris W., 158 Canandaigua." The record does not show whether or not there is a street in the village bearing its name. If there is, inquiry at that number would have disclosed the error. If there is not, the entry was sufficiently odd and peculiar to make the notary's alleged understanding that the figures meant number of acres owned in Canandaigua inexcusable without some further inquiry. Prior to the act of 1857 service upon the indorser residing in the same town at his place of residence therein was required. The change permitting instead a service by mail was carefully guarded and limited. Where the notary relied upon a "reputed" residence he was required to act from "the best information obtained by diligent inquiry." Merely looking into a directory is not enough. The sources of error in that process are too many and too great. Such books are accurate enough in a general way, and convenient as an aid or assistance, but they are private ventures, created by irresponsible parties and depending upon information gathered as cheaply as possible and by unknown agents. Their help may be invoked, but, as was said in Lawrence v. Miller ( 16 N.Y. 231), their error may excuse the notary, but will not charge the defendant. Merely consulting them should not be deemed "the best information obtained by diligent inquiry." ( Greenwich Bank v. De Groot, 7 Hun, 210; Baer v. Leppert, 12 id. 516.) These cases differ somewhat in their facts, but clearly indicate that bare reliance upon a directory is not sufficient diligence, and that should certainly be the rule upon facts such as are disclosed in the present case.
The judgment should be affirmed, with costs.
All concur.
Judgment affirmed.