The nonsuit in this case was properly denied.
When the plaintiff rested, he had proved the contract by which the defendant had received the note for collection, and agreed, if it were not paid on presentation, to have the same protested; and he had further given some testimony tending to prove that this contract had not been performed.
It appeared that, when the note was returned to the plaintiff *377by the Adams Express Company, no certificate of protest was attached to it; and the plaintiff refused to receive it for that reason. It was not then pretended, by the person having the principal charge of the affairs of the company, that the note had been protested; and he promised the plaintiff that he would write and inquire why it had not been done.
The plaintiff never heard from the company, or any of its officers, after that interview.
Upon this evidence, the jury could not properly have found that the note had not been protested, in compliance with the defendant’s contract, and it would not have been proper to taken the case from them.
After the close of the testimony, the court ruled:
1. That the evidence on the part of the defendant did not amount to proof of waiver of notice of non-payment and notice of protest, by Saltus & Co., the indorsers of said note.
2. That such evidence was not sufficient, as between the plaintiff and the defendant, to discharge the express company from the performance of their agreement.
3. That there was no sufficient evidence to go to the jury, of any waiver of notice of non-payment or notice of protest, on the part of Anna Saltus, one of the indorsers of the note.
To these three distinct propositions the defendant took a single exception, and it follows that, if any one of the propositions can be maintained, the exception is not well taken. Day v. Roth, 18 N. Y. 448 ; Winchell v. Hicks, Id. 558; Haggart v. Morgan, 5 N. Y. (1 Seld.) 422; Hunt v. Maybee, 7 N. Y. (3 Seld.) 266. The last of the three propositions was undisputedly correct. There is no evidence whatever in the case tending to show Anna Saltus ever waived her rights as indorser of the note.
Whatever may have transpired between the maker and the other indorsers, affecting the rights of the latter, it is not pretended that Mrs. Saltus ever participated in it, or had any knowledge of it. She was therefore entirely unaffected by the agreement by which it is claimed the other indorsers waived notice of protest. Consequently, the judge ruled correctly as to that part of the case, and the exception does not bring the other nropositions under consideration.
*378[The remarks oí the judge as to another question not passed on by the court, are omitted.]
The judgment should be affirmed, with costs.
All the judges, except Bocees, J., absent, concurred, on the ground that the exception did not cover the error in ruling that Saltus & Co. were not proved to have waived demand and notice.
Judgment affirmed, with costs.