Kruger. No. 2

Not overruled or negatively treated on appealinfoCoverage
Appellate Division of the Supreme Court of New York, Fourth DepartmentNov 1, 1899
45 App. Div. 187 (N.Y. App. Div. 1899)
45 App. Div. 18760 N.Y.S. 1071

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November Term, 1899.

C.J. Church, for the appellant.

Norris Morey and Edward R. Bosley, for the respondents.

Plaintiff's complaint alleges that on October 13, 1896, at the city of New York, the defendant Buffalo City Mills, Limited, made its draft or bill of exchange, in writing, for value received, by its duly authorized agent and manager; said draft was dated on October 13, 1896, and was for $450, and drawn payable three months after date to the order of E.H. Kruger Co. and addressed to Messrs. Lovegrove Co., No. 143 North Third street, Philadelphia. It is alleged that the drawer delivered the draft to the drawee, and that on the 16th of October, 1896, Lovegrove accepted the draft, in writing, and that the acceptance was made by Lovegrove "under his firm name of Lovegrove Company." It is averred that "thereafter the said draft was duly indorsed and delivered, before maturity, and for value received, by the defendant Kruger, the payee therein named, under his firm name of E.H. Kruger Company, by his duly authorized agent and attorney, to the Bank of Commerce in Buffalo." It is also alleged that on January 13, 1897, when the draft became due, "it was duly presented for payment to the defendant Lovegrove, by a notary public, and payment thereof demanded; that payment of the whole or any part thereof was refused, whereupon, on said day, it was protested for non-payment, and notice of said presentment, demand, non-payment and protest served upon each of the defendants." It is further averred that the Bank of Commerce in Buffalo was, and that these plaintiffs, since their appointment as receivers, have been and now are, the owners and holders of said draft. In the amended answer of the defendant Kruger he denies "that he is the sole member of the firm of Edward H. Kruger Company, doing business at Elizabeth City in the State of North Carolina," and in his amended answer makes several other denials not important to be stated. Among other allegations found in his answer is the following: "And the said defendant Edward H. Kruger, for a further and separate answer and defense, herein alleges and shows to the court, on information and belief, that all of the business done under the name of Edward H. Kruger, or E.H. Kruger and Company, in connection with the making, indorsing and delivering of any and all promissory notes or drafts set up in the complaint was done and transacted, using the designation and company with no actual partner or partners represented thereby."

The answer also contained allegations relating to a counterclaim, which counterclaim was withdrawn before the trial.

The answer contained no averment that there was a defect of parties, and the defendant Kruger was not in a situation to question the sufficiency of the complaint upon the trial. ( Persons v. Kruger, No. 1, 39 App. Div. 416.)

The draft mentioned in the complaint was produced and offered in evidence and the signatures to the same were duly shown to be genuine.

It is found as a fact that after the draft was accepted by the drawee, "the said draft was duly indorsed and delivered before maturity, and for value received, by the defendant Edward H. Kruger, the payee therein named, under the name of E.H. Kruger Company, by his duly authorized agent and attorney, to the Bank of Commerce in Buffalo." The evidence produced at the trial satisfactorily established the fact thus stated.

It was further found: "That when said draft became due and payable, to wit, on or about January 13, 1897, it was duly presented for payment to the drawee and acceptor thereof, to wit, Lovegrove Co., by a notary public, and payment thereof demanded; that payment thereof, or of any part thereof, was refused, whereupon the said draft was, on said date, duly protested for non-payment, and notice of said presentment, demand, non-payment and protest was duly given to the defendant Edward H. Kruger."

Upon the trial some evidence was given tending to show the statutes of Pennsylvania in respect to demand, protest and notice of commercial paper. Upon the argument the respondents were allowed to furnish an exemplified copy of the statute of Pennsylvania and an exemplified copy relating to authentication of letters of attorney; protests of notaries public have been submitted. In the 2d section of the act we find the following provision: "The official acts, protests and attestations of all notaries public, certified according to law, under their respective hands and seals of office, in respect to the dishonor of all bills and promissory notes, and of notice to the drawers, acceptors or indorsers thereof, may be received and read in evidence as proof of the facts therein stated, in all suits now pending or hereafter to be brought; Provided, that any party may be permitted to contradict, by other evidence, any such certificate."

We think that the plaintiffs were properly allowed to read in evidence the notarial certificate executed by William J.P. Allen, notary public, of the 13th of January, 1897, relating to the paper in issue, and that, pursuant to the statute of Pennsylvania, the certificate was prima facie "proof of the facts therein stated." Under the Pennsylvania statute the defendant was at liberty "to contradict by other evidence" such certificate.

In this State, by section 923 of the Code of Civil Procedure, the certificate of a notary public under his hand and seal of office is allowed to establish the presentment by him for acceptance or payment, or the protest for the non-acceptance or non-payment of a promissory note or bill of exchange, and the service of notice thereof on the party to the note or bill and to specify the mode of giving the notice, the reputed place of residence of the party to whom it was given and the post office nearest thereto; and such certificate is declared to be "presumptive evidence of the facts certified, unless the party, against whom it is offered, has served upon the adverse party, with his pleading, or within ten days after joinder of an issue of fact, an original affidavit, to the effect, that he has not received notice of non-acceptance, or of non-payment of the note or bill." No affidavit was made by the defendant, or by Brown, to the effect that no notice had been received of the protest of the paper in question. Nor was any evidence given upon the trial by the defendant Kruger, as a witness, or Brown, as a witness, that the notice of protest alleged to have been served was not received.

Cuming v. Roderick ( 28 App. Div. 253) does not aid the contention of the appellant, as in that case, after the notary's certificate of protest was introduced in evidence by the plaintiff, "he allowed the indorser, without objection or exception, to testify that notice of protest had not been received by him."

Upon the trial a power of attorney purporting to be executed by the firm of E.H. Kruger Co. was produced and read in evidence, and by that power of attorney it appeared that Andrew Brown was constituted attorney to make and sign all notes, drafts, bills of exchange, checks, contracts, and other commercial or money obligations, to accept and indorse drafts, indorse checks, notes and all and every form of obligation which the said firm can execute, giving and granting unto said Brown full power and authority to do and perform all and every act and thing whatsoever, requisite and necessary to be done in and about the premises. That power of attorney was signed and dated on the 10th day of May, 1892, and was executed with the signature of E.H. Kruger Co. On that day Edward H. Kruger appeared before a notary public who certified to the fact of such appearance, and that such Kruger was known "and known to me to be a member of the firm of E.H. Kruger Co., and acknowledged the above letter of attorney to be their act and deed." The evidence given in connection with the power of attorney fully indicated that Brown acted as the general agent of Kruger in carrying forward the business transacted by him with the Bank of Commerce and had full charge of the acts and dealings with the bank and the management of the paper which had been discounted by the bank at the instance of Brown for and in behalf of the appellant Kruger. We think the evidence warranted the court in finding that service of notice of protest upon Brown was sufficient as he was the agent who indorsed the paper for the defendant Kruger.

In Firth v. Thrush (8 Barn. Cress. 387) the opinion was expressed that authority to indorse negotiable paper carried with it authority to receive notice of its dishonor.

We think the Bank of Commerce had the right to presume that the draft, which is the subject of this action, was business paper such as it had been in the habit of discounting for defendant Kruger, and that the notice of protest given to Brown was to the agent of the appellant and that the evidence warranted a finding of a general agency on the part of Brown. ( Bank of Auburn v. Putnam, 3 Keyes, 343; Hubbard v. Matthews, 54 N.Y. 44.) The latter case was approved and cited in Fassin v. Hubbard ( 55 N.Y. 465). (See, also, Lake Shore Nat. Bank v. Butler Colliery Co., 51 Hun, 68.)

(2) Notwithstanding the finding made by the trial court that payment of the draft was refused, "whereupon the said draft was on said date duly protested for non-payment, and notice of said presentment, demand, non-payment and protest was duly given to the defendant Edward H. Kruger," it is contended in his behalf that the evidence was insufficient to establish the fact of notice. As we have before seen, the notary in Philadelphia presented the draft and made a demand and issued notices of its dishonor, and in his certificate, which was received in evidence, stated that "notice of the foregoing demand, non-payment and protest, partly written and partly printed, signed by me, and folded in the form of letters, as follows, viz.:

"Notice for Buffalo City Mills, | Enclosed to Bank of L't'd Directed, | Commerce in Buffalo, do. for A. Brown, Mgr. | Buffalo, N Y

* * * *

do. for ppro. E.H. Kruger | Enclosed to Bank of Co., A. Brown, Atty. | Commerce in Buffalo, Directed. | Buffalo, N.Y."

Mr. Persons, one of the receivers of the Bank of Commerce, was called as a witness and he was asked whether he was able to say "whether or not any notice of protest received from the Notary Public at Philadelphia for E.H. Kruger Company, was forwarded," and he answered, "It was." He was then asked if he had any recollection of the fact that this draft was not paid when it was due, and he answered, "I have." He was then asked to detail the course of business as to the mailing of letters, correspondence and notices of all kinds by the receivers. He answered, viz.: "The mail was put in an envelope, addressed and put in a box, or left on my desk, and the janitor put stamps on and took it to the office. * * * The janitor was John Dover." The witness added that the same course was taken with letters that were laid upon his table; and continuing, he said: "The letters were left on my desk or put in a general box, a mail box that hung just at the side of one of the cages in the bank, and it was Dover's business to take that mail and carry it to the office. If there wasn't any stamps on the envelope when he took them out of the box, or off of my desk, he was to put them on and take the mail and carry them over and put them in the office. Q. That was the United States Post office, here on Seneca street? A. That was the place it was to go."

The plaintiff called Walsh as a witness, who testified that he had looked over a memorandum of the Lovegrove paper, being returned from Philadelphia, and added: "After refreshing my recollection that enables me to recollect the fact that the paper did come back and the notice for Kruger Co. Q. State what was done with the notice of Kruger Co. A. It was probably mailed."

He was then asked the following question. "Q. What is your recollection after being refreshed by this memorandum and from your knowledge of the business course that was carried on there. What is your recollection as to what was done with that notice? * * * A. Put in an envelope and mailed to Box 811, P.O. New York City. Q. What was the course of business as to the mailing of all mail matter from the receivers' office? * * * A. It was inclosed in an envelope, sealed and put on the receivers' desk or in a mail box and taken over to the post office by the janitor." He adds that stamps were put on at the request of the receivers.

The plaintiff then called John Dover, who had been employed in the bank prior to the suspension of business as janitor and messenger for twelve years, and he testified that he remained with the receivers after they came into the bank and went after the letters for the bank and brought them from the post office to the bank, and he adds: "I collected the letters for the mails, to go out in the mails, stamped them that wasn't stamped; if I found any letters that wasn't stamped, I stamped them. I had access to the stamps to do such things and mail them. To mail them I bundled them up and carried them over to the United States post office on Seneca street. I always did that with letters for the mail while I was in the employ of the receivers."

Subsequently, the witness Walsh was further cross-examined and gave such circumstances as were recalled by him, and in the course of his redirect examination he said: "My recollection is that I saw the notice of protest or draft returned, and spoke to one of the employees of the bank, expressing surprise. I remember the circumstances of it being received and marking it `Protest' on the tickler and my speaking to someone about it. It was my duty to mail those notices of protest to the indorser, Kruger Company, or to Andrew Brown. Mr. Clark, the bank examiner in charge at that time, imposed that duty upon me." The witness was then asked: "State what was the form of the notice of protest forwarded for Kruger Company to New York?" and the witness answered, "It is the usual form of notice." The witness added that he had been in the banking business and accustomed to seeing notices of protest for some fourteen years, and thereupon he was asked the following question: "What is your best recollection now after having seen that memorandum and after having your recollection refreshed, as to whether or not you did forward that notice, mailed it and paid the postage on it? * * * A. I think I mailed the notice the day of its receipt, after marking it returned on the discount tickler. Q. Is that usually the course of business? A. Yes, sir. Q. After the receivers came in did you have the same duty about forwarding notices of protest? A. Yes, sir."

We think the evidence supports the finding of fact made by the trial judge that notices were given.

In Randolph on Commercial Paper (Vol. 3, § 1312, p. 364) it is said: "The evidence of the bank officers as to the invariable course of business of the bank to the effect that notice must have been sent, has been held to be sufficient to go to the jury, although the witness had no recollection of the particular matter." In section 1314 the same learned author says: "The sufficiency of the evidence, as well as its credibility, should be left to the consideration of the jury, and their conclusion as to the facts is sufficient to support the verdict, although it may differ from the opinion of the court as to such facts."

It must be borne in mind that there is no affidavit denying receipt of the notice, and under such circumstances we think the evidence given tending to show that notice was sent, should be liberally construed.

In McLean v. Ryan ( 36 App. Div. 281) it was said: "An indorser can always compel the production of common-law evidence against him to prove the service of notice by an affidavit denying the receipt of notice. For that reason, where the indorser is unwilling to make such an affidavit, the courts are inclined to construe the notarial certificate with great liberality." (Citing Seneca County Bank v. Neass, 3 N.Y. 442. )

In Edwards on Bills and Notes (Vol. 2, § 987), where a notary had testified that he had no doubt notice was given, though at that distance of time he could not recollect positively, and that it was possible he might have given the notice to the holder to forward, the author says, "This evidence, say the court, was certainly sufficient, in the first instance, to support the averment of due notice, and there being nothing to affect it, it will support the verdict." (See, also, § 988.)

In Union Bank v. Stone ( 50 Maine, 595) the notary testified that he was in the habit of delivering notices to S., and S. testified that he was in the habit of delivering notices for the notary, and that he seasonably delivered to the parties to be notified all notices handed him for delivery, but had no definite recollection of doing so in the present instance, and it was held by the court that this testimony was sufficient.

In Daniel on Negotiable Instruments (Vol. 2, § 1056) it is said: "Where a notary testified that it was usual for him to send notices of dishonor on the evening of the day of protest, and he had no doubt it was duly done in this instance, it was held sufficient evidence of notice." (See, also, Miller v. Hackley, 5 Johns. 375; New Haven Co. Bank v. Mitchell, 15 Conn. 206.) In Daniel on Negotiable Instruments (§ 1054, 4th ed.) it is said, viz.: "When the mail is the proper channel for the communication of notice, it is not necessary to show the distinct fact that the particular letter containing the notice was put in the mail by ocular evidence thereof. Proof that notice was put with letters for the post office by one clerk, and that the letters of that day were deposited by another clerk would be sufficient. And it would likewise be sufficient to show that it was put with letters customarily made up in the usual course of business for the postman, and that he invariably carried all the letters found upon the table."

The trial court having found the essential fact upon evidence which we believe to be sufficient to support its finding, it is our duty to sustain the conclusion drawn by the trial judge from the evidence and sustain his finding of fact in respect to the service of notice, and the judgment should be sustained.

All concurred, SMITH, J., not sitting.

Judgment affirmed, with costs.