On appeal from the Second District Court of the City of Paterson.
For the appellant, Koch & Simon (Paul Rittenberg, of counsel).
For the appellees Peoples Bank and Trust Company of Passaic and J. Vincent McQuire, William N. Gurtman.
For the appellee The Hamilton Trust Company of Paterson, New Jersey, Albert Comstock (William B. Gourley, of counsel).
Before Justices Trenchard, Heher and Perskie.
The opinion of the court was delivered by
PERSKIE, J. This is a tort action. Appellant, plaintiff below, is the owner and holder of a $200 promissory note of
one, Kohut Simon, dated January 16th, 1933, and made payable two months after its date at the Peoples Bank and Trust Company of Passaic, New Jersey; it is endorsed by one I. (Israel) Frucht, but his address does not appear thereon. Prior to the due date of the note, plaintiff delivered it to the Hamilton Trust Company of Paterson, New Jersey, for collection. The latter bank, after endorsing it and guaranteeing the endorsements, transmitted it to the Federal Reserve Bank of New York for presentation and collection. The last named bank followed the same procedure as to endorsements and, in turn, transmitted it to the People Bank and Trust Company of Passaic, New Jersey, for presentation and collection.
On March 16th, 1933, J. Vincent McQuire, teller and notary of the People Bank and Trust Company, presented the note for payment and when it was not paid protested it. He mailed notices of protest to the Federal Reserve Bank of New York, Hamilton Trust Company, and to the maker, payee and endorser in care of the Hamilton Trust Company. The latter received these notices on March 17th, 1933, and on the day following mailed them to the plaintiff. The plaintiff denied that she ever received notice of the fact that the note was not paid; she testified that she did not learn of its non-payment until about a week after it was due and then only through the intervention of her husband whom she sent to the bank to make inquiry concerning it.
It is undisputed that Frucht, the endorser, did not receive any notice of protest. Notwithstanding the refusal of the trial judge to admit in evidence the docket of the suit in the District Court of the city of Paterson, by the plaintiff against the endorser, "it is admitted that suit was instituted against him [Frucht] and judgment was rendered in his favor by reason of his failure to receive notice of its [note] protest and dishonor." The execution issued on the judgment recovered against the maker of the note was returned unsatisfied.
Let it be marked that the gravamen of the complaint is that each defendant was under duty to the plaintiff of furnishing notice of protest and dishonor pursuant to law; that the breach of ...