Certain facts which may be regarded as established by the verdict of the jury in this case are clearly set forth in the prevailing opinion by Mr. Justice Williams, and I have no criticism to make upon the principles of law which he enunciates.
Waiving the question as to whether the debt was not primarily that of the defendant, as that proposition was not submitted to the jury, let us see if there was evidence warranting the jury in finding that the defendant when he paid the twenty-four dollars knew that the note had not been protested for non-payment.
The plaintiff did not know Sherlock, the maker of the note. The money was borrowed of her by the defendant; it was paid to him, and he subsequently procured the note and delivered it to her. He had nothing further to do with it until after its maturity. He then personally paid the interest, which was the only money ever paid to apply upon the note, and* the jury have found that this payment was made with his money. It was to pay a debt “ that he owed Mrs. Werr,” and concededly no other existed. He had obtained the note and delivered it to the plaintiff. He paid one year’s interest and it was in June while the note matured May twenty-seventh. His connection with it, therefore, was sufficient to justify the conclusion that lie must have known the note was overdue when he made this payment.
All the plaintiff’s dealings relative to the note were with him, not with the maker. She importuned him for pay repeatedly. She never dunned Sherlock. Whatever may have been the legal liability of the defendant to her it is clear that she considered him the paymaster,, the one to whom she was to look for payment. His actions indicate that was his attitude also at the time he paid the interest. These facts are too significant to warrant the assumption that as matter of law he did not know- the note had not been *121protested when he paid the interest. To start with, the presumption is against him. The principle is thus stated in Daniel on Negotiable Instruments (3d ed. § 1152): “When it is conceded or proved that there were laches in respect to the demand, protest or notice, the promise to pay after maturity should be regarded as prima facie evidence that the party making it knew of such laches, whenever such knowledge is deemed necessary to constitute a waiver. It is a promise against interest. The drawer or indorser should know when the instrument to which he was a party fell due. His promise to pay presupposes it to be overdue and unpaid. And if he has not received notice, lie has every reason to suppose that it was not sent, and that the steps which should precede it were not taken.” And the same author says (§ 1166), what is self-evident, “ that part payment after maturity stands upon precisely the same footing as a promise to pay.” Kent in his Commentaries (Yol. 3 [6th ed.] 113), after stating the general principle that an indorser with full knowledge that no demand or notice of non-pay ment has been given, may, by a subsequent promise to pay, waive the omission, adds: “ The weight of authority is, that this knowledge may be inferred as a fact from the promise, under the attending circumstances, without requiring clear and affirmative proof of the knowledge.” ■ In Meyer v. Hibsher (47 N. Y. 265), in discussing the subject of presumptions in a case of this kind where no proof at all was offered, the court say (at p. 273): “ Had there been no proof at all of the manner of presentment and demand, this promise of the appellant would be presumptive evidence of a legally formal demand and notice. * * * Proof of the promise without proof of presentment and demand would have furnished to the jury ground for the presumption that there was due presentment and notice.” In Bank of U. S. v. Lyman (1 Blatchf. 297; affd.. 12 How. [U. S.] 225) the court said: “ It has been often held that part payment, a promise to pay, or an acknowledgment of liability by the endorser, after the note becomes due, is prima ■fac%e evidence not only of notice, but of presentment.”
The evidence in the case does not overcome this presumption.
The facts upon which knowledge rests may not be susceptible of direct proof and yet the circumstances may be adequate to show its existence. As was said in Cady v. Bradshaw (116 N. Y. 188, *122at p. 191): “It is not necessary that the waiver'should be direct and.positive. It may result from implication and usage, or from any understanding between the parties which is of a character to satisfy the mind that a waiver is intended.”
The fact of defendant’s knowledge is to be established like any other cogent element essential to make up the plaintiffs case.
The plaintiff was ignorant of the English language. She evidently relied upon the defendant, who had solicited this money from her and indorsed the note which he had procured. He paid the interest, knowing the note had matured. This was a manifest recognition of liability, and with the other facts justified the jury in determining that he knew the note had been protested for nonpayment. The defendant did not testify that he never received notice of protest. While that may have been unnecessary in view of the allegations of the complaint, yet it is a singular fact that the evidence nowhere shows that the note in fact had not been protested.
The judgment should be affirmed, with costs to the respondent.
Adams, P. J., concurred. -
Judgment of County Court arid of Municipal Court reversed, with costs.