#### H. Herrmann Lumber Company, Appellant, *v.*Ivar Bjurstrom, Impleaded, Respondent.

(Supreme Court, Appellate Term,

November, 1911.)

Negotiable instruments —Notice of dishonor: Sufficiency of notice: Sufficiency of evidence of notice.

New trial—Grounds — Rulings and instructions at trial — Reception and exclusion of evidence.

Inartificial language, accompanied by omission to give the date of the making of a note, the date of its maturity and the name of the payee, does not invalidate a notice of protest.

The indorser’s inability to recollect whether he "received written notice of protest does not overcome positive proof that such notice was written and mailed.

In an action against the indorser of a promissory note, where the defense is the want of notice of presentment and nonpayment, the exclusion of parol proof of the indorser’s promises or declarations in regard to the nonpayment of the note may have excluded proof of a verbal notice, and is error for which a judgment in favor of the defendant should be reversed.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Hew York, borough of Manhattan, first district, entered in favor of the defendant after a trial before the court without a jury.

*94Otto Greenberger, for appellant.

Axel Jos-ephseotn, for respondent.

Guy, J.

Action on a promissory note for $300. Defense by indorser that there was no sufficient notice- of protest. Plaintiff claims there were two written notices of protest as follows:

“ Hew York, *May*15, 1911. •

“ Hr. I. Bjubstrom,

*“*2650 Broadway, City:

*“*Dear Sir.-—We beg to inform you that the note of Carl A. Karlson for $300 due to day at our office endorsed by you has'not been paid. Mr. Karlson was Here and said he could not take up the note until the 29 inst. We would therefore ask you to send us a check in -settlement by return mail.

*“*Yours truly,

“ H. Herrmann Lumber Co.”

*“*Hew York, *May*29, 1911.

“ Mr. I. Bjubstrom,

*“ 2650*Broadway, City:

“ Dear Sir.— The ■ note of Mr. Karlson for $300 due May 15th and 'endorsed by you, has not yet been paid, and unless you take it up at once, we will place the matter in the hands of our attorney for collection.

“ Yours truly,

“ H. Herrmann Lumber Co.”

Plaintiff’s testimony tended to show that the respondent indorser was present at the making of the note and that the letter of May fifteenth was duly mailed. Plaintiff’s carbon copy thereof was put in evidence.; presentment and demand and refusal of payment were proved. About two days later, the respondent was called up and asked what he intended to do about the note; he answered “ Everything will be all right. I will be down *to*your office Monday or Tuesday.”

Despondent indorser, in answer to a leading' question, does *95not remember receiving the letter of May fifteenth; after his memory had been refreshed by reading his affidavit denying notice of protest, he finally said, in answer to another leading question, that the first notification he had that the note was unpaid was when he received the letter of May twenty-ninth.

Questions tending to show that he had promised to call at plaintiff’s office in regard to the payment of the note; also that he had refused to pay it, were excluded; the former over exception.

The trial justice dismissed the complaint, saying: “Assuming that the letter of May 15th was in fact mailed and received by the defendant * * * the notice contained in that letter is not a sufficient notice to hold the endorser. * * * The letter of May-29th, 1911, fourteen days after-wards, was not timely.”

The trial justice held the letter of May fifteentji ineffectual because Karlson “ was entitled to have the date of the note given him, and for what period it was made,” also “ the name of the payee.”

Defendant’s inability to recollect whether he received written notice of protest does not overcome the positive proof that such notice was written and mailed. Hastings v. Brooklyn Life Ins. Co., 138 N. Y. 473, 476, 478; Kupferberg v. Horowitz, 52 Misc. Rep. 488, 489; McAndrew v. Radway, 34 N. Y. 511, 513.

Inartificial language, accompanied by an omission to give the date of the making of the note, the day of its maturity and the name of the payee, does not invalidate a notice of protest. Youngs v. Lee, 12 N. Y. 551, 554.

The negotiable Instruments Law says:

“ Sec. 166. When notice sufficient. A written notice need' not, be signed and an insufficient written notice may be supplemented and validated by verbal communication. 'A misdescription of the instrument does not vitiate the notice unless the party to whom the notice is given is in fact misled thereby.

“ Sec. 167. Form of notice. The notice may be in writing or merely oral and may be given in any terms which sufficiently ’identify the instrument,. and indicate that it *96has been dishonored by no-macceptance" or non-payment. It may in all cases be given by delivering it personally or through the mails.”

Moreover, the exclusion, of all parol proof óf respondent’s promises or declarations in regard to the non-payment of the note may have excluded proof of a verbal notice.

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

Seabuby and Cohalan, JJ., concur.

Judgment reversed.