The only question presented by this case is, whether the defendant was properly charged as indorser of the note in suit, by a due presentment and demand of payment of the same of the makers. The note was made by Hartman & Ilch, who were partners in business, and was payable six months after date, but specifying no place of payment. The demand of payment was, consequently, required to be made of the makers, personally, or at their dwelling-place or place of business. (Story on Bills of Exchange, § 362; Taylor v. Snyder, 3 Denio 145.)
On the subject of the demand, the referee finds the following facts. We assume the facts, as settled by the report—do not look out of it, to find any other state of facts than such as are found by him: (The learned judge here stated the findings of the referee.) Assuming these facts, as we do, from the findings of the referee (and they are amply sustained by the evidence), I think, his conclusion was entirely right. The rule that requires a demand, in such a case, to be made personally, or at the residence or place of business of the makers, is satisfied, if due and reasonable diligence is used to ascertain such residence or place of business.
In this case, such diligence seems to me to have been employed. The makers of the note, by their own statement to the holder of the note, located themselves at the basement designated by them. They, in fact, vacated *the premises theretofore occupied by them, and were, on the 3d of November, so far as they were carrying on business at all, in the use and occupation of the basement at the corner of Bowery and Division street. In addition to a demand at this place, the notary also called at the former place of business and residence of the makers, and at both places, and in the vicinity of each, made inquiries for the parties; from which he could derive no information as to the whereabouts of either of them.
*740I do not well see what greater diligence he could have employed. A search in the directory would have been of no avail, since the change of residence had been so recent, that it would have afforded no aid; and if the inquiry and search had been limited to the directory, it would clearly have been insufficient. (Packard v. Lynn, 5 Duer 82.) I am unable to perceive any track of inquiry or investigation that could have been pursued, that would have been rewarded by a discovery of the 'then actual residences of these parties; and am of opinion, that all the diligence the case called for, or the law exacts, was employed by the notary in making the demand of payment. The judgment should be affirmed.
Judgment affirmed.
Mason, J., dissented.