The action is on a promissory note, against maker and indorser. The indorser alone defended, and the plaintiff recovered. The defense interposed was that the note was not duly protested, by reason whereof the defendant, the indorser, was discharged from liability.
. The referee found that the note was presented for payment at the proper place, in the early part of the day on which it full due, and payment being refused or omitted, notice of such presentation and non-payment was immediately, and before noon of the same day, given to the indorser. After-wards, and on the same day, the indorser directed the person in charge of the store where the note was payable, to pay it if presented.
I am satisfied upon the evidence, with the referee’s finding, *72that presentation, demand of payment and refusal, and notice thereof to the indorser, were duly made. The holder made demand at the proper place—the place of payment named in the notice—of the person who then had charge.of the store, being the only person in charge. He had the note with him, and although he did not exhibit it, yet he so described it as to leave no doubt but that the maker, if present, would have well understood of what note payment was demanded. He was there to demand payment of the note in suit, and plainly manifested his purpose, and the person of whom payment was asked understood what he desired. This was sufficient. Such demand, refusal or omission to pay with immediate personal notice thereof to the indorser, fixed and determined his liability, and he was thus bound to its absolute payment without a repetition of those formalities.
.The demand was early in the day; about 8 or 9 A. i.; but it was during ordinary business hours at the store. So it was not unreasonable in point of time. After such demand and refusal, the holder was at liberty to treat the note as dishonored and immediately proceed to charge the indorser, by giving him notice of its non-payment.
The promise of the maker was to pay on that day, on presentation by the holder at the store; the bolder made presentation as he was bound to do at a reasonable hour, and payment was refused or omitted. He was not required to remain all day at the place to receive payment; nor was he bound by any custom—as perhaps he might have been had the note been payable at a bank—to leave the note until the close of the day. But his duty was at an end when he made presentation of the note for payment, at the proper place, at a reasonable hour, followed by immediate notice to the indorser. It is laid down in the elementary works that if payment be refused during the last day, the holder may give notice of its dishonor; yet if payment be subsequently made on that day, such notice becomes of no avail. True the maker has the whole of the last day of grace within which *73to pay. (Smith v. Aylesworth, 40 Barb. 104. Outhout v, Ballard, 41 id. 33.) But after due demand and refusal, followed by notice to the indorser, the maker, if he wishes to make payment, must seek the holder for that purpose. Judge Sutherland remarked, in Osborn v. Moncure, (3 Wend. 170,) as follows: “The demand upon the maker should be made on the third day of grace, and within a reasonable time before the expiration of the day; and if he then refuses payment, the holder has done all that is incumbent upon him to do, and may treat it as a dishonored bill, so far as immediately to give notice to the indorser; but still I apprehend the maker has the whole of the last day to pay in, if he thinks proper to seek the holder.” The decisions bearing on the question under consideration are collected in Outhout v. Ballard, above cited, and while it is there held that a suit commenced on the last day of grace is premature, yet sanction is given to the doctrine that notice of dishonor may be given to the indorser, so soon as payment has been refused; even before the close of the business day. The holder must present the note and demand payment ,on the day of its maturity, and at a reasonable time during business hours. If payment be refused, the paper is then dishonored, and immediate notice of such dishonor will fix the liability of the indorser, even though the maker had the whole day within which to make payment, if he choose to seek the holder for that purpose.
If, in this case, the presentation was made in reasonable time, the holder, having given the indorser notice of the dishonor, had performed his whole duty. He was not required to remain all day to receive payment; nor was he bound to repeat the demand.
There is a custom at banks which gives to the maker all of bank hours within which to pay, and in order to meet this custom, the note, when payable at a bank, is usually left there, and demand is made at the close of the day. But here the note was not payable at a bank, and there ivas no custom to control the contract. So presentation during the proper *74hours of business was good. These range through the whole day. (2 Hill, 635. 4 Gray, 453. 4 T. R. 170. 7 East, 385.) The note was dishonored in the hands of the holder after presentation at a reasonable hour on the day of its maturity. The omission, to pay on presentation was equivalent in law to a refusal to pay, by the maker. The latter was then in default, and, although he could not be sued on that day, as the law will not notice fractions of a day ; still he must discharge his liability without imposing on the holder any further trouble.
[Schenectady General Term, January 6, 1885.I have no doubt that Ladd was duly charged as indorser, without passing on the question whether funds were in fact provided at the store for the payment of the note, after the notice of dishonor was given. If the note was duly protested and the indorser charged, the mere providing of funds at the place specified for the payment, after that, would not discharge him.
The representative character of the plaintiff was sufficiently proved. When the letters of administration, issued to the playrtiffs-,' were offered in evidence, the objection was raised Hiat they were incompetent. This was the only objection. It was not suggested that they were without jurisdiction and void. If it had been intended to raise that objection, it should have been presented, where, in all reasonable probability, it would have been obviated by proof. (3 Selden, 345. 20 Barb. 409. 42 id. 36-9.)
The judgment should be affirmed.
Totter, Soches, James and 1losehrans, Justices.]