Franklin v. Smith
New York Supreme Court
Error from the New York common pleas. Smith sued Franklin in an action on the case for negligence in omitting as a notary to give notice of the non-payment of a note, whereby the plaintiff alleged he had lost his remedy against the endorser.
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Error from the New York common pleas. Smith sued Franklin in an action on the case for negligence in omitting as a notary to give notice of the non-payment of a note, whereby the plaintiff alleged he had lost his remedy against the endorser. The defendant, besides adducing evidence for the purpose of establishing the fact that notice of protest was duly givén, proved an arrangement between the | maker and endorser of the note, whereby the latter had as- * sumed the payment of the note, and urged that in conseIquence thereof the endorser was not entitled to notice of non-payment, and proved…
1Opinion of the Court
By the Court,
Nelson, Ch. J.
It is clear upon principle, and not without authority, (vide Van Wart v. Woolley, 3 Barn. & Cress. 439; 5 Dowl. & Ry. 374; 5 Maule &. Sel. 62; and 1 Barn. & Cres. 10,) that if the plaintiff sustains no loss, or need not sustain any with ordinary attention to the case, notwithstanding a defective notice of protest, the notary is not liable to him; and if he is fully advised of a ground of sustaining the action against an endorser independently of the notice, and wilfully or negligently omits to to avail himself of it, he cannot subsequently sustain an action against…
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