The judgments of the County Court and of the Municipal Court should be reversed, with costs.
The action as tried was upon a promissory note made by one M. F. Sherlock for $400 and interest, dated May 2T, 1895, payable to the order of the defendants Zett and Kohles one ■ year after date and indorsed by the- payees and transferred to the plaintiff for value. The note was not protested at maturity, but the plaintiff claimed that .the defendants, the indorsers, after the maturity of the note, waived such protest. The only question litigated on the trial was the waiver of protest, which was alleged by plaintiff and denied by the defendants.
The jury rendered a verdict in favor of the plaintiff against-both defendants. The County Court reversed the judgment entered upon the verdict as to the-defendant Zett, but affirmed it as to the defendant Kohles,, and from that judgment of affirmance this appeal is taken.
The only question here is, whether there was sufficient evidence in the case to sustain the finding of the jury that there was a waiver, of protest.
It was not claimed that there was any express formal waiver, but that the appellant* considering his relations to the indebtedness, for which the note was given, and his acts and ■ statements made with reference to the debt and the note, indicated his intention to continue his liability as indorser upon the note..
There was evidence from which the jury might; find the following facts:
1. That plaintiff let the defendant -have $400, and defendant, several days after j procured this note and delivered to plaintiff.
2. In June, 1896, just after the maturity of the note, this defendant brought twenty-four dollars to plaintiff and gave it to her husband for her, saying that it was for the money that he -owed plaintiff. There was no other indebtedness, and this sum was the interest for one year on the amount of the note.
3. After that plaintiff kept asking this defendant for her money, and he kept telling her that she would get it before the maker died. Defendant said she ought to have her interest and she would get it.
4. Plaintiff did not know the maker of the note.
*119It is well settled that a waiver of protest, after maturity of a note and failure to protest the same, may be established by showing a promise to pay the note^ or by a part payment thereof, or any statements made by an indorser indicating an intention to regard the note as still an existing liability on his part, provided, however, that at the time of such promise or payment or statements the indorser had knowledge that there was a failure to protest the note at maturity. (2 Daniel Neg. Inst. [2d ed.] §§ 1147, 1149, 1152, 1158, 1163, 1165; Ross v. Hurd, 71 N. Y. 14; Cady v. Bradshaw, 116 id. 191.)
The only trouble as to the proof of waiver in this case is as to proof that the defendant, when he made the payment of twenty-four dollars and the statement that the debt was his, had knowledge that the note had not been protested at maturity. Less than a month had elapsed since the note became due. He knew when it came due, and it might fairly be inferred that he knew it remained unpaid from the fact that he paid the interest upon the note ; but there is no evidence, direct or circumstantial, that he knew there had been a failure to charge him by the ordinary steps constituting a protest of the note whether payment had been demanded or refused or whether notice had been served by mail upon the indorser. The demand and refusal would not necessarily be within his knowledge, and even the notice might be legally served and not come to his knowledge. It might miscarry in the mail so as not to be received by him personally.
The proof of knowledge is necessary, and it must be made clearly to appear. (Trimble v. Thorne, 16 Johns. 152; Richard v. Boller, 6 Daly, 460; Baer v. Leppert, 5 Hun, 453.)
We are thus led to the conclusion that the evidence was not sufficient to support a finding by the jury that there was a waiver of protest, and without such waiver being established, the defendant could not be held liable upon the note.
It will not do to say the verdict can be upheld upon some other theory or finding than that submitted to the jury or found by them. There was a charge in the case in which the right to recover was made to depend solely upon a waiver of protest after maturity of the note. That was the only question submitted to the jury, and it would be unfair, even if we had the power, to affirm the judgment *120based upon such verdict upon some question not passed upon by the jurj- • '
- The judgments of the County Court and of the Municipal Court should be reversed, with costs.
Rumsey and McLennan, JJ., concurred; Spring, J., dissented in an opinion in which Adams, P. J., concurred.