#### William R. Wilson, Respondent, *v.*Eliza E. Knights Peck, Defendant, and Joseph B. Roberts, Appellant.

(Supreme Court, Appellate Term,

February, 1910.)

Negotiable instruments — Notice of dishonor: Sufficiency of notice —

Notice addressed to maker — Time for giving notice.

Notice of dishonor of a promissory note erroneously addressed on its face to the maker but sent by mail to and received by the indorser is sufficient in the absence of proof that the indorser was misled thereby.

A note placed in a mail chute under the control of the post-office department in the city of New York on the day of protest and postmarked the following day at noon will be presumed to have been delivered before the close of business on the day last mentioned, as required by section 174 of the Negotiable Instruments Law, in the absence of proof to the contrary.

Appeal by the defendant Boberts from a judgment of the City Court of the city of New York, entered in favor of the plaintiff upon the verdict of a jury.

Joseph B. Roberts, for appellant in person.

Henry L. Rupert (James A. Delehanty, of counsel), for respondent.

Whitney, J.

Plaintiff was indorsee of a promissory note. Appellant was payee and indorser. The offices of both were in the borough of Manhattan. The note was dishonored and protested February 9, 1909. Appellant claims that the notice of protest was insufficient in two respects.

The first objection is that the notice was addressed on its face, by mistake, to the maker instead of the indorsee. It described the note correctly. The envelope was correctly addressed and was personally received and opened by appellant. By section 166 of the negotiable Instruments Law a misdescription of the instrument does not vitiate the notice, unless the party “is in fact misled thereby.” This but *180states the law as previously settled. Mills v. Bank of the United States, 11 Wheat. 431; Gates v. Beecher, 60 N. *Y.*518. By analogy, we think that the same rule should be applied where the instrument is misdirected instead of being misdescribed. Carter v. Bradley, 19 Maine 62. Whether Marshall v. Sonneman, 216 Penn. St. 65, where the misdirection was on the envelope as well as on the face of the notice, would be followed in this State, it is unnecessary to discuss. Appellant was a lawyer. He knew that he had indorsed a note for that maker for that amount, which was outstanding. He knew the notary and knew that the notary was the indorsee’s attorney. He made no claim on the witness stand of having been misled.

The second objection is to the time when the notice was mailed. The notary testifies that he put it in the mail chute on the day of protest. The envelope is postmarked at the Madison Square post-office on the following day at noon, and directed to appellant at 141 Broadway. Ho testimony is given as to what the postmark signifies as to the hour when- the letter was deposited in the chute. The chute was a letter box under the control of the post-office department, and therefore equivalent to the post-office itself. Heg. Inst. Law, § 177.

The notice is only required by the statute to be deposited *“*in time to reach him (the addressee) in usual course on the day following ” the dishonor; and the context shows that he is to be deemed reached if the notice arrives “ before the close of business hours.” Id., § 174. This should certainly allow until five o’clock in the winter season; and, in the absence of evidence to the contrary, the court properly presumed that it arrived in time. Appellant swears that he did not get it until the following day, but does not testify that he was at his office on the day when it was mailed. ■

The judgment should be affirmed, with costs.

■Seabury and Guy, JJ., concur.

Judgment affirmed, with costs.