Noonan & Price Co. v. Ekwanok Realty Co.

SEABURY, J.

The plaintiff has recovered a judgment against the appellant Indelli as indorser of a promissory note.

The only question in issue is whether the appellant was duly served with notice of protest. The testimony of the notary was very general, and was based upon the certificate which he made out at the time the note was protested. Upon cross-examination the notary admitted that the appellant’s name was inserted in the certificate three days before the trial of the action, which was long after the note was protested. An examination of the certificate shows that the appellant’s name is written in ink of a different color from that in which the other names on the certificate were written. The appellant’s name was evidently inserted after the certificate was written out. The appellant testified that no notice of protest was received by him.

In view of the positive testimony of the appellant, and the admission of the notary, and the condition of the notary’s certificate, we-think the learned court below was in error in awarding judgment foi the plaintiff.

Judgment reversed, and new trial ordered, with costs to the appellant to abide the event. All concur.