Van Vechten v. . Pruyn , 13 N.Y. 549 ( 1856 )

The precise question in this case is whether the endorser of a note, whose known residence is in the same village where the note is held and protested, and who is at home three days in the week, can be charged by a notice of protest directed to him by mail in a distant town or city where his place of business is, where he spends the residue of his time and receives letters and papers, there being no evidence that the notice actually reached him in due time so as to render it equivalent to personal service. I can find no authority for charging him by such a notice, and I think no principle can be urged in favor of the proposition.

It is well settled that when the endorser resides at the place of the presentment and dishonor of the note, the notice must be served on him personally, or what is deemed equivalent, must be left at his dwelling or place of business, if he has one there. (Ireland v. Kip, 10 Johns., 490; Ransom v. Mack, 2Hill, 587; Sheldon v. Benham, 4 id., 129; Smedes v.Bank of Utica, 20 Johns., 372.) This is the language of all the authorities; and it is pertinent to add in this connection that originally service through the post was not allowed in any case, wherever the endorser might reside. (Ransom v. Mack,supra.) The rule was relaxed when the person to be notified resided in a different place from the one where the note was presented. In such cases it was allowed to send by the post, and so the law is now well settled. This modification of the old rule has also been held to embrace the case where the endorser resides in a distant part of the same town nearer to another post-office at which he usually receives his letters, and there is a regular mail communication between the two places; the test being whether there is a regular communication by mail from the one place to the other. (Ransom v. Mack, supra.)

Further than this I do not find that the rule requiring personal service has ever been relaxed, and I see no reason why it should be further relaxed. The service which the rule requires is of a higher and safer degree than service by mail. Service in the latter mode when allowed is complete, by a mere deposit of the notice in the post-office in proper time and properly directed, whether it ever reaches the endorser or not. All that the law requires of the holder is due diligence in mailing the notice, and he is not responsible for any accidents which may prevent its due transmission and delivery. Hence the inferiority of this mode of service. It is less safe by just so many degrees as the mere probability of transmission by mail and delivery from the post-office is below the certainty of a personal notification. And this is the reason of the rule which has been stated. A relaxation is admitted to avoid the inconvenience of making a journey, or sending a messenger to another place more or less remote. In the present case the endorser was known to reside within two hundred yards of the bank where the note was protested, and as service clearly might have been made on him there, and without the inconvenience suggested, I think the rule requires that it should have been so made.

It is urged on behalf of the plaintiffs that notice may be served either at the residence of the party to be charged or at his place of business, and cases are cited to the proposition. There is an obscurity in the proposition as stated when the service is by mail, and it is of that we are speaking; it is not made either at the residence or place of business, but it is made, as we have already seen, at the place of the presentment and dishonor of the note, by depositing the notice in the post-office properly directed. More accurately stated, however, the proposition is true and is fully sustained by the authorities, but it does not help the present case. When the service is not by mail the notice may be left indifferently at the endorser's dwelling or place of business, and within this principle I presume the notice would have been sufficient, if actually left at the defendant's place of business in New-York. So when the service is by mail, the law is indifferent whether the notice is directed to the endorser's residence or to the place of his business where he receives letters. (MontgomeryCounty Bank v. Marsh, 3 Seld., 481; Downer v. Remer, 23Wend., 620; Reid v. Payne, 16 Johns., 218; Bank ofGeneva v. Houlett, 4 Wend., 328.) But this is as far as the cases go. The law is not indifferent as to the mode of service. It does not say that the holder may elect between personal and mail service, because there happens to be a place of business to which the mail goes, so long as there is also a place of residence at which service cannot be made through the post-office, but must be made personally.

The case of The Seneca County Bank v. Neass (3 Comst., 442), has been cited, but it does not reach the question. There the endorser received his letters at the post-office in the village where the note was protested, but he resided in another town, in which were two offices, and it did not appear that the holder knew anything of him except his residence in that town. It was held that notice sent by mail to those offices was a good service. That case was put in this court very much upon the act of 1835 (Stat., p. 152), which provides that in all cases where notice may be served by mail, it shall be sufficient to direct it to the residence of the endorser, unless he has himself specified some other post-office to which it is to be addressed. The law was substantially the same before the act of 1835. That statute was passed to obviate the inconvenience arising from an erroneous decision (Cuyler v. Nellis, 4 Wend., 398), which was afterwards overruled in the court of errors (Downer v.Remer, 23 Wend., 620). The case last mentioned, as well as that of The Seneca County Bank v. Neass, go upon this doctrine, clothed with statutory authority by the act of 1835, that where the holder knows the endorser's residence, he may send the notice to that address, and is not put upon inquiry whether there is a nearer or some other post-office at which the endorser receives his letters. But neither of these cases is any authority for sending a notice by mail, away from the endorser's known residence, to his place of business elsewhere, or for serving by mail at all when he resides at the very place where the note is protested.

The Judgment should be affirmed.