Austin, Nichols & Co. v. Collingwood Chestnut Bar Corp.

The papers sufficiently raise questions of fact as to notice of presentment, dishonor and protest and timeliness thereof, which should be passed upon by trial rather than determined upon a motion for summary judgment. Moreover, failure to give notice of dishonor and protest for nonpayment to the indorsers is not excused by reason of the fact that they were officers of the corporate maker of the dishonored note. They are entitled to the statutory notice when they are sought to be held secondarily liable (Goldstein v. Brastone Corp., 254 App. Div. 288, affd. 279 N. Y. 775; Shenkin v. Grant, 3 Misc 2d 333).

The judgment and order should be reversed, with $10 costs to appellants, and motion denied.

Hecht, J. P., Aubelio and Tilzer, J.J., concur.

Judgment and order reversed, etc.