Kelly v. Theiss

O’Brien, J.:

There is no practice which sanctions an appeal from the order and it may, therefore, be dismissed—the questions to be considered arising upon the appeal from the judgment.

In this action it was sought to charge the defendants as indorsersof a promissory note ; and the facts .connected with the making and delivery thereof having been stated upon the former appeal (Kelly v. Theiss, 65 App. Div. 146 ) need not be here repeated. The sole question presented is whether or not under the complaint the plaintiff may prove the giving of oral notice of dishonor to defendants personally or through an agent. We do not understand that it is seriously contended that an oral notice would be insufficient whether given personally or through an agent; but if authority is needed for such a proposition, it can be found in abundance in text books, cases and the Negotiable Instruments Law itself. (4 Am. & Eng. Ency. of Law [2d ed.], 414; Cuyler v. Stevens, 4 Wend. 566 Woodin v. Foster, 16 Barb. 146 ; 2 Danl. Neg. Inst. [4th ed.] § 972; Neg. Inst. Law [Laws of 1897, chap. 612], §§ 162, 167.)

Our inquiry is thus narrowed down to the question whether or not the learned trial judge was right in his ruling excluding such evidence upon the ground that plaintiff had pleaded a written notice. The complaint alleged that “ said note was duly protested and due notice of said demand and non-payment was sent to the defendants above named and that the cost of said protest was $1.25.”

The construction given to the language was that it imported that a written notice was sent. We think that this is giving too narrow and too restricted a meaning to the word “ sent,” it being evident that one can send a notice either verbally or in writing. Stress, however, is placed upon the fact that after the statement that notice was sent appears the language about the cost of protest. Here again, we think undue weight is given to the words referring to-the cost of protest, after the statement of the sending of notice. *83 The first thing in the order of time would be to have the note protested which would result in the cost alleged of one dollar and twenty-five cents. After such protest, the form of the notice, whether verbal or written, was at the option of the holder of the note.

We think, therefore, that, under the allegations, it was entirely competent for the plaintiff to prove either written or oral notice and that the court was in error in excluding proof of the latter upon the ground that a written notice was alleged.

It follows, accordingly, that the judgment must be reversed and a new trial ordered, with costs to the appellant to abide the event.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment reversed, new trial ordered, costs to appellant to abide event; appeal from order dismissed.