The action is brought to recover of the- defendant, -as indorser, the amount of two promissory notes and -protest fees. The question presented for determination is whether the evidence shows as matter of .law the giving of due notice of protest to the defendant. Both notes were made at Scranton, Penn., by the copartnership firm; of O, F. Beckwith & Co. of that city.'. They were payable -to the order of the defendant, indorsed by him and -then indorsed. by 'the makers and delivered- to the plaintiff before maturity at'whose-bank they were payable. The notary who.protested the notes was ' called' by the plaintiff. . His .testimony is sufficient to show due presentation, demand, dishonor -and protest, but concerning the mailing of the notice of protest to the defendant -it was indefinite and uncertain both as Jo time and address and conflicted, with other evidence presented by the plaintiff. He testified that he addressed the notice to the defendant at some place, the number he could not remember, between 60 and 70 Central Park West, city of New York, and that he obtained the defendant’s address .from C. -F. Beckwith, one of the makers ; but he does not expressly state that he addressed the envelope according to the address he received, from Beckwith. Beckwith was also called by the plaintiff and gave the defendant’s residence, place of business and other addresses for receiving mail at that time, none of which, however, was Central Park West, and-further'testified that the defendant had had an apartment in Central Park West, but does hot specify the time or place. He was not asked concerning the address that he gaye the notary., ' Beckwith testified that the- defendant was a member of his, firm. It may be that- the jury- would have been justified in finding that the notary addressed the notice to an address given byBeckwith, the defendant’s partner, and that this would be a full compliance with the duty of exercising proper diligence to ascertain the post office address and notify the indorser of .the dishonor of the paper which is a 'condit-ion precedent to his liability. (Spencer v. Bank of Salina, 3 Hill, 520; University Press v. Williams, 48 App. Div. 188 ; Requa v. Collins, 51 N. Y. 144; Gawtry v. Doane, Id. 84, 92.) The court, however, was not warranted in attempting to reconcile this conflict of testimony and in deciding *435the question as one of law. The verdict, therefore, cannot he sustained upon the direct notice to the defendant.
The notary gave due and timely notice of protest to the defendant’s firm, who were both makers, and, in form at least, subsequent indorsers. If the plaintiff had alleged that the defendant. was a member of the firm I am of opinion that he would be chargeable with knowledge of the dishonor and with the notice given to his, firm as indorsers (Gowan v. Jackson, 20 Johns. 176 ; Halliday v. McDougall 22 Wend. 264, 272; see, also, Neg. Inst. Law [Laws of 1897, chap. 612], §§ 170, 185, 186); but this was not pleaded, and, since it was not an issue, there is no justice or propriety in seizing upon this item of evidence, although admitted without objection that it was not pleaded, for the purpose of holding the defendant. The verdict should stand or fall upon the issues as tried. The notice to the firm, however, was received either on the day the note fell due or on the morning of the day following. With it came under separate cover, addressed to the defendant, care of the firm, a formal notice of protest by the notary in behalf of the plaintiff directed to the defendant, and the firm were requested to forward the same to him. Mr. Beckwith testified that immediately upon receiving this notice he inclosed it in an envelope and addressed it to the defendant at his regular place for receiving mail in the city of New York, which was in care of his éounsel on'this appeal.
The notary, who was a member of the bar of Pennsylvania, testified that the statutory law- of that State required that the notice of protest to an indorser, when served by mail, be addressed either to his residence or place of business or last place of residence. If this testimony is to be construed literally it indicates that the rule in Pennsylvania is more restricted than the requirements of the law merchant or of the Negotiable Instruments Law as adopted in this and many other States, including Pennsylvania (Laws of Penn, of 1901, No. 162), in that under them, if the indorser has not designated an address on the' instrument, notice to any address where he is accustomed to receive mail would be sufficient. (Ransom v. Mack, 2 Hill, 587; Van Vechten v. Pruyn, 13 N. Y. 549, 555.) This question would not have arisen had the plaintiff’s counsel introduced the statute instead of taking the opinion of the *436attorney,, which was manifestly not only erroneous on the' law, tint, as he construed the law, it is doubtful whether the notice would .be sufficient. We. think that the verdict, may be saved, however, upon the theory that this evidence was incompetent to prove statutory law (Code Civ. Proc. § 942; Hynes v. McDermott, 82 N. Y. 41, 54; Lincoln v. Battelle, 6 Wend. 475; Chanoine v. Fowler, 3 id. 173), and even if the plaintiff, having introduced it, is bound by it, it is insufficient to establish that the law of Pennsylvania on this point is different from the law merchant and should be so construed as to be consistent therewith.
Although it presumptively appears from thé face of the notes and the indorsements that the defendant was an accommodation indorser for the makers (Smith v. Weston, 159 N. Y. 194; National Park Bank v. German American M. W. & S. Co., 116 id. 281), and, therefore, would not. be liable, to them and consequently they could not in their own behalf give him a valid notice of protest (Neg. Inst. Law, § 161; Cabot Bank v. Warner, 92 Mass. [10 Allen] 522; Harrison v. Ruscoe, 15 M. & W. 231; Stanton v. Blossom, 14 Mass. 116, 120; Story Prom. Notes [7th ed.], § 303), yet they could on behalf of the bank and as its agents give the notice by forwarding it immediately as was done. (Neg. Inst. Law, §§ 162, 163; Sewall v. Russell, 3 Wend. 276 ; Chanoine v. Fowler, supra; Lawrence v. Miller, 16 N. Y. 235 ; Smith v. Poillon, 87 id. 590; Eagle Bank v. Hathaway, 46 Mass. [5 Metc.] 212; Rowe v. Tipper, 13 C. B. 249 ; Chapman v. Keane, 3 Ad. & El. 193 ; Lysaght v. Bryant, 19 L. J. C. P.160.)
It follows, therefore, that the judgment and order should be affirmed, with costs. '
Ingraham and McLaughlin, ' 'JJ., concurred; Patterson, J., concurred in result; Van Brunt, P. J., dissented.
Judgment .and order affirmed, with costs.