The exact circumstances of this case have not, as far as I am aware, existed in any of the reported cases. The notes were payable at the Catskill Bank in the village of Catskill, and that was the permanent residence of the defendant who was the endorser. He was a householder in the village, and his family resided there continuously. He was, however, engaged in the practice of the law in the city of New-York, and was, as the case states, at his office in that city from Monday night to Friday night in each week; the residue of the time he was generally with his family in Catskill. The law firm of which he was a member had a box in the New-York post-office, and he received business and private letters there, and that city was the only place of his professional or other general business. He had also a box in the post-office at Catskill and there received letters and papers. Under these circumstances, notices of protest upon the notes in question were addressed to him at New-York, and were mailed at Catskill. The single question is whether the notices were so sent as to charge him.
Where the party entitled to notice has his residence and his house of business in the place where notice is to be given, notice may be given to him personally or may be left either at his dwelling house or his place of business. Where he resides in one place, transacts business in another, and receives letters at each, and notice is to be given by mail from a third place, it may be directed either to his place of residence or business. (Bank of Geneva v. Howlett, 4 Wend., 328; Montgomery Co.Bank v. Marsh, 3 Seld., 481.)
In Seneca Co. Bank v. Neass (3 Comst., 442), the bank which gave the notice was in Waterloo, and the endorser resided in the adjoining town of Fayette, but usually received and mailed his letters in Waterloo; it was held that notice by mail directed to Fayette was good. In Ransom v. Mack (2 Hill, 587), the bank was in the village of Sacketts Harbor in the town of Houndsfield, and the *Page 555 endorser lived in that town seven miles from the bank, and there was but one post-office in the town and that in the village of Sacketts Harbor, and the endorser received his letters at a post-office in another town nearer to his residence than Sacketts Harbor, it was held that notice addressed to the endorser at the office where he usually received his letters would be sufficient.
It seems therefore to be settled that, where notice is not to be given by mail, it may be left either at the place of residence or of business of the endorser. Where it is to be given by mail, it may be directed either to his place of residence or of business, where they are different. It may also be given by mail to his place of residence, no matter where he is accustomed to receive his letters, and it may be given by mail to the place where he usually receives his letters, notwithstanding his residence is in the same town but at a place distant from that where the letter is mailed. These cases, I think, imply an absolute option on the part of the party seeking to charge the endorser to give the notice either at the place of residence or of business of the endorser, when, by the exercise of that option, a less advantageous mode of giving notice will not be introduced. Where the service is by mail, the duty of the holder is discharged by depositing the notice in the post-office, properly directed. Whether it ever reaches the endorser or not, his liability is fixed. On the other hand, where personal notice is to be given, the obligation is upon the holder to leave the notice either with the party to be charged or at his residence or place of business. In these cases, there is no risk in transmission to be borne by the endorser. I find no case in which the endorser has been deprived of the right to personal notice, when his residence was in the same place where notice was to be given, and it seems to be a sufficient reason against relaxing the rule, that thereby a mode of notice less advantageous to the endorser would be introduced. The judgment should be affirmed. *Page 556
MITCHELL, J., delivered an opinion in favor of reversing the judgment of the supreme court and ordering judgment in favor of the plaintiffs for the amount of the notes.
All the other judges were in favor of affirmance.
Judgment affirmed.