By the Court —
Cardozo, J.It was properly conceded on the argument that the draft sued on is a foreign bill, and that in order to charge the indorser, presentment and protest in case of non-payment, must be made by a notary public.
In addition to the authorities mentioned in the opinion of judge Mullin, reference may be made tb Brooke on the office of notary public, pages 69 and 133.
Mr. Turney being a notary, could of course have presented the draft, and upon its non-payment might have made the protest. The trouble is, that he did not. He presented the draft, but he did not do what was necessary in respect to a foreign bill upon payment being refused. He neither drew up the formal protest, nor made a note or minute upon the face of the bill, sometimes termed an incipient protest, which-last mentioned act would have been sufficient if he had made up the formal protest before suit brought. (Brooke, p. 72.)
What Mr. Turney did, is therefore, of no consequence, because it is quite too late to assert that any part of the official duty of a notary can be delegated. (Onondaga Bank v. Bates, 3 Hill, 53.)
When the instrumentality of a notary, as in respect to a promissory note or inland bill, is not indispensable, and as to which the functions which he ordinarily exercises may be per*105formed by any individual with equal effect as if done by a public officer, it only becomes a question of requisite proof on the trial (Gawtry v. Doane, 48 Barb., 155); but that does not apply to the case of a foreign bill in respect to which the action of a notary is needed in order to fix the liability of the indorser.
The law having determined what the duty of a notary in regard to a foreign bill is, evidence of a custom among notaries contrary to that duty was inadmissible. The cases cited by Justice Mullet, render further examination of that subject unnecessary.
Whatever may be said of the right of the plaintiff to maintain this action independent of the statute (3 R. S., 5th ed., 474, § 37), in regard to which I fully concur with Judge Mullin, I think there can be no doubt of their right to sue the defendant under the statue upon the ground of official misconduct. He was a public officer, and undertook to perform an official duty and neglected it. That is misconduct, for which an action lies.
There is no force in the objection that section two of the act of April 14, 1857 (S. L. 1857, chap. 416), does not cover such a bill as the one in question.
The act plainly meant to provide that days of grace should not attach to a draft appearing on its face to be drawn on a bank whether payable on a day expressly designated or to be ascertained by mere calculation.
There was no error committed on the trial, and the judgment below must be affirmed.