Gilpin v. Savage

• Decision Date: 03 March 1911
• Citation: 201 N.Y. 167,94 N.E. 656
• Parties: GILPIN v. SAVAGE.
• Court: New York Court of Appeals Court of Appeals

201 N.Y. 167

94 N.E. 656

GILPIN

v.SAVAGE.

Court of Appeals of New York.

March 3, 1911.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Richard S. Gilpin against William M. Savage. From a judgment of the Appellate Division (132 App. Div. 948,118 N. Y. Supp. 1108), affirming a judgment of the Trial Term, plaintiff appeals. Reversed.

See, also, 124 N. Y. Supp. 875.

John T. Ryan, for appellant.

John M. Hull, for respondent.

CULLEN, C. J.

The action is brought against the indorser of a promissory note, made payable at a particular place designated by street and number, which was the residence of the maker. The only question in the case is whether the presentment to the maker was sufficient to charge the indorser. At the maturity of the note it was in the hands of the Columbia National Bank, which was located about two miles from the maker's residence, in Buffalo. After some delays the cashier of the bank succeeded in calling up the maker at his place of residence. He stated to him that the bank held the note, and the further conversation between the parties we will assume to be sufficient to establish a demand for its payment and refusal or statement of inability on the part of the maker to comply with the demand. The cashier had the note in his possession when the demand was made, and the maker made no request to see it or for its production, but stated he would call at the bank, which he did a short time subsequently. What then transpired between the parties does not appear.

By section 116 of the negotiable instruments law an indorser engages that on due presentment a note or bill will be paid, and that if it be dishonored, and if the necessary proceedings on dishonor be duly taken, he will pay the amount thereof to the holder; by section 130 presentment for payment is necessary in order to charge the indorser; by section 132 presentment, to be sufficient, must be made at a proper place as defined in the act; and by section 133 presentment is made at a proper place where a place of payment is specified in the instrument and it is there presented. These statutory provisions seem to be a mere re-enactment of the common law as it has hitherto obtained in this state, with the possible exception that they may have altered the rule that, where no possible damage could occur to the indorser by the failure to make proper presentment, he was not discharged by such failure, which exception, however, was of the most limited character; mere insolvency of a party primarily liable on the instrument not being sufficient to create it. Smith v. Miller, 52 N. Y. 545.

It seems to us entirely clear that no proper presentment of the note was made. Presentment of a note and demand of payment must be made by actual exhibition of the instrument itself, or at least the demand should be accompanied by some clear indication that the instrument is at hand, ready to be delivered, and such must really be the case. Daniel on Negotiable Instruments, § 654. While it may not be necessary to actually produce the note, if the maker refuses to pay it, it must be there at the place for presentment; otherwise, the presentment is insufficient. Story on Promissory Notes, § 243; Freeman v. Boynton, 7 Mass. 483;Woodbridge v. Brigham, 13 Mass. 556. The reasoning of Chief Judge Ruger in the case of Parker v. Stroud, 98 N. Y. 379, 384,50 Am. Rep. 685, clearly points out the reason for the rule. The action was against the indorser of a demand note, who pleaded the statute of limitations, relying upon a demand for payment made on the maker by mail. It was held the demand was insufficient to set the...