Morning herald. [volume] (New York [N.Y.]) 1837-1840, 1838-01-12
Important Law Proceedings.

CovRr OF CommoN Pleas, Thursday Jan. H.
Before Judge irving
Morris Franklin, notary public. This was action
brought 10 recover 81 OF, the amount OF note, with
interest, which the said notary neglected 10 notify
the endorser was protested
This action most important on account of the
great principles involved, 10 the respective and re-
atve liabilities of banks and their notarles for neglect
ing TO nofy the endorsers of various protested notes
For the prosecution it was shown that in conse
qence OF the notary negectHg to notify the endorser
MIR. Wright the claim against the endorser who was
able TO pay was lost, and the maker of the note hav
ing failed Mr.. Smith, the boaa fde holder of the note
could not receive the amount from either of them.
This case is we believe the only one that has ever
been tired our courts so as to decide on the liabilities
of notares.
II was tried at a former term, on other grounds
and the jury after being out all night could not agree
and were discharged.
The note in QUESTION was dated 23rd Nov. 1885
payable months after date, and was drawn by Ro-.
bert Travis, payable to the order of John Wright, or
bearer for Sl07 so. 1t was also endorsed by John
Wright. The note passed from Wright 10 AIR. Wat
son he gave it TO Milford Smith for loan of 500
in cash; Smith paid it to MIR. Walter ". De Grand
in the way OF business and the latter gentleman de-
posted it in the Leather Manufacturers Bank for col
lection. II was not taken up, but returned 10 Mr.. De
Grandby the bank as protest. note, and he was
charged with ST. SO, the notarys fees for protesting
IT, This 81 so was paid 10 Morris Franklin, the no
ary Of the bank for his alleged services behalf of
Mr.. Smith
The note finding its way back TO Mr.. Smith, he
instituted snii against the maker and enderser,
Travis and Wright. On the trial, it was shown that
Franklin had neglected TO notify Wright, and Wright
therefore got judgment against Smith for the Of
the suit Wright was able TO pay AND would have
been Obliged 10 pay, had he been notified.
Smith, however, got a Judgment against Travis, but
in the interim Travis had failed and Smith obtained
nothing The We diet beng conclusive that Smith
could never recover from Wright and could never in
her act;np
was brosght.
Robert Travis deposed tina, he was sued, but was
irresponsible.
John Wright deposed that he did business a, the
corner Of Canal and Broadway, and nj the corner of
Canal and Wooster streets; had four five signs up
there with his name on them also lived al Isl Ca
nal street, never received notice OF the note being
protested; was sued, and at the time was able TO
pay.
Mr.. De Grand deposed that he had in his bank
book the record OF deposlting of the note that he
paid the 81 SO nstarys fees for protesting behalf
of MIR. Smith.
Mr.. Conner, first teller of the Leather Manufac-
Jurors Bank seposed that he received the note-it
not taken up-he handed IL for protest 10 Mr..
Franklin-and charged the usual fees TO his credit.
The bank never took any part Of these fees the
tary is settled with month. These fees are al
WAYS charged to the depositor.
The defence first was that there had been private
contract between the drawer and the endorser To the
effect that the endorser was 10 pay the when
made without the prvity Of the bona fde holder Mr..
Smith. IL was contested by the counsel for the no.
tary, that under such circumstances no notice was
necessary. The defence, secondly. was that when
note is lodged in bank for collection, the bank is i'm
medla'ely liable and not the notary. As set off to
this, the great Of the Utica Bank Smedes
was cited. where the Supreme Court decided that
Smedes would have been liable for neglecting to pro-
test, had he been notary, equally responsible
individual recognized by law.
The counsel tor plaintiff also commended that both
notary and bank were liable and he could recover of
either. The notary had neglected TO furnish any evil
dence OF notice OF protest TO the endorser and was
therefore liable for the amount OF the note the interest
and the verdict Of costs obta ned by Wright In the
judgment given against Smith.
The counsel wished 10 introduce the record OF the
former trB 10 show the amount Of verdict for costs
&c. that Wright obtained but the Court decided
that the record of another could not be nirodu
cedlathough testimony might now be brought TO that
effect.
The Judge charged that he doubted whether suffi
Gent proof had been brought TO show that there had
been of protest left either Of he stores of
Mr. Wright, with any Of the persons in his employ.
He thought this ought To be shown conclusivey in
this case where the third party was charged with
neglect and damages were demanded in consequence
II the jury think the notary neglected TO give the pro-
per notice of protest, then he is clearly liable in
law.
verdict was then given for the plaintiff for s. Is OF
being the amount Of note notary fees, and inte
rest.
Henry M. Western versus Benjamin ii. Day.
This was action brought 70 recover l50 dollars
for the hafrent Of the house No SO Beekman street
The house had been let to Mrs. Ann Clemens at 100
dollars per month. Mr. Swain, formerly in the Sun
Office, but more recently a dentist, had married a
daughter of Mrs. g. On this account Mr.. Day bad
become security for one half the rent for months.
The jury found verdict for plaintiff sl55.70 the
amount of rent with interest
IMPORTANT TO THE WHOLE ConMuNiTy-LIABILI.
TIES or OrrrcERs.-Michael Short versus Christie
pher Merkle
This was an action brought to recover s0l 90, the
amosnt OF a writ Of feri facas Issued from the Ma
rine Court against the goods Of Abraham Stagg on a
Judgment obtained by Michael Short The writ had
been given 10 the defendant Merklc who IS an officer
Of the 7th Ward Court he had levied on the goods
Of Stagg but never made return To the Court or
paid any money to Short The writ was issued June
% 1887, and made returnable on the 18th Of July
The original sum sued for by Short was s97 46 the
costs in the Marine Court whence the writ was sued
were 81 A; and the officers poundage was ~ So
making q total Of S104 80.
IL was shown in evidence that the statute provides
that IL an officer makes levy, and does not make
proper return, he is liable to the amount for which
the prcc 20 was issu, d.
Mr.. John Barbere, cltrk TO the Marine Court, depe.
sd hat the writ had been gwen 20 Merkle and be
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