To an action by the holders of a note against the indorser, the defendant pleads a discharge for default in notice of dishonor. The note being payable, and the indorser resident, in the city of New York, the plaintiffs availed themselves of the method of notice provided by statute; namely,- by deposit in the post office. But, by indorsement on the envelope containing the protest, the postmaster was requested to return it to the plaintiffs if not delivered within 10 days; and the argument is that this direction defeated the effect of the deposit as a notice. We are of opinion that the contention is untenable. The law never required actual notice to the indorser, but due diligence sufficed to charge him. Gawtry v. Doane, 51 N. Y. 84; Libby v. Adams, 32 Barb. 542. Proceeding on the presumption that a communication duly addressed and deposited in the post office will regularly reach its destination, (Steamship Co. v. Otis, 100 N. Y. 446, 3 N. E. Rep. 485; Price v. McGoldrick, 2 Abb. N. C. 69,) the statute prescribes that a notice of protest “may be served” by being so addressed and deposited. Hence such deposit is the legal equivalent of notice. Ellis’ Adm’r v. Bank, 40 Amer. Dec. 63; Bank v. Marsh, 7 N. Y. 481. Yet, notwithstanding the literal terms of the statute, it may be assumed that, were the deposit so conditioned and incumbered as to repel the presumption of delivery, it would not amount to notice. But such is not the present case. From the facilities and securities for the prompt delivery of mail matter in the city of New York, the inference is inevitable that 10 days was ample time for the receipt of the notice by the defendant. By the United States Revised Statutes, it is provided that a letter not called for within a given period shall be sent to the “dead-letter” department; and, by section 3939, that after 30 days, if the name and address of the writer be indorsed on the letter, it shall be returned to him. The state statute making a deposit in the post office equivalent to notice must have contemplated these provisions of federal law; and hence the inference that an absolute and unrestricted deposit is not a necessary condition of such notice. By the Code, under certain circumstances, service of pleadings may be made by mail; and the service is com pióte upon deposit in the post office, although in fact the paper miscarry in the delivery. Jacobs v. Hooker, 1 Barb. 71; Crittenden v. Adams, 5 How. Pr. 310. In Gaffney v. Bigelow, 2 Abb. N. C. 311, the defendant deposited his-answer in the post office, but with a direction to return it “if not called for in five days.” An objection that this qualification of the deposit destroyed its effect as a legal service was overruled by a court consisting of Mullin, P. J., and E. Darwin Smith, and Gilbert, JJ. The authority is in point, and would control our decision, even were it supported by less satisfactory reasons.
Appellant assails the judgment again on the ground that the defendant was discharged by an extension of time to the maker; but, it appearing beyond doubt that the indulgence was gratuitous, the liability *364of the indorser is unaffected. Upon this 'point nothing need be added to the argument of the city court, general term.
So far as the appeal invites a consideration of questions of fact, they are concluded, before us, by the determination of the court below. In other exceptions we observe no feature of gravity. Judgment affirmed, with costs.
DALY, C. J., concurs.