Higgins v. Barrowcliffe 14 Jones and Spencer's Super. Ct. Rep. 540

NATHANIEL D. HIGGINS, Respondent, v. HENRY M. BARROWCLIFFE, Appellant.

Indorser has one day after receipt notice protest to seme prior indorser.— Parol evidence inadmissible to vary indorsement.

Before Curtis, Ch. J., and Speir, J.

Decided February 2, 1880.

*541Appeal by the defendant, from the judgment entered against him upon a verdict, and also from the order denying his motion for a new trial, made upon the judge’s minutes.

The defendant by his answer put in issue the protest of the draft upon which he was sued as an indorser. He also controverted the allegation in the complaint, of due service upon him of the notice of protest, and alleged a parol agreement with one Higgins, releasing him from his indorsement. The court, at general term, said : “ The evidence shows due presentation and protest of the draft, and service upon the defendant of notice thereof. The proofs fail to show any irregularity on the part of the notary, or the plaintiff. The plaintiff, as indorser, had one day after the receipt of the notice of protest within which to serve notice on the . prior indorser (Farmers’ Bank of Bridgeport v. Vail, 21 N. Y. 488 ; West River Bank v. Taylor, 34 Id. 128 ; Howard v. Ives, 1 Hill, 263).

“ The defense also set up in the answer, that, by a parol agreement with one Elias S. Higgins, the defendant was not to be held liable on his indorsement, is not available, as Elias S. Higgins was not the owner of the draft, and could make no such agreement; and even if the defense had been properly pleaded, parol evidence is inadmissible to vary the implied contract of an unrestricted indorsement (Cottrell v. Conklin, 4 Duer, 50, and cases there cited; Bank of Albion v. Smith, 27 Barb. 489).

Thomas & Wilder, attorneys, and Edward P. Wilder, of counsel, for appellant.

Marlin & Smith, attorneys, and Aaron Pennington Whitehead, of counsel, for respondent.