
    Richard Korkemas, Appellant, v. Elias Macksoud, Respondent.
    First Department,
    April 8, 1909.
    Bills and notes —possession by maker after maturity.
    Where the maker of a promissory note makes no pretense that he has paid it, the mere fact that he came into possession in some unexplained manner after the second indorser at his request and to avoid protest paid the same, does not entitle him to the protection of section 200 of the Negotiable Instruments Law providing that such instrument is discharged when the principal debtor becomes the holder at or after maturity “ in his own right.”
    Appeal by the plaintiff, Richard Korkemas, from an order of the Appellate Term of the Supreme Court, entered in the office of the clerk of the county of ¡New York on the 24th day of ¡November, 1908, affirming a judgment of the City Court of the city of ¡New York in favor of the defendant, entéred in the office of the clerk of said court on the 26th day of June, 1908, upon the dismissal of
    
      the complaint at the close of the case, and also (as stated in the notice of appeal) from an order on the remittitur of said Appellate Term, entered in the office of the clerk of said City Court on the 25th day of November, 1908, and from the judgment of affirmance entered thereon on the 27th day of November, 1908.
    
      E. W. Tyler, for the appellant.
    
      Maurice M. Greenstein, for the respondent.
   McLaughlin, J.:

This action was brought in the City Court of the city of New York to recover the amount of a promissory note made by the defendant and payable to the order of N. N. Maloof & Co. At the close of the case, upon motion of the defendant, the complaint was dismissed, and from the judgment entered plaintiff appealed to the Appellate Term which affirmed the judgment, and by permission plaintiff has appealed to this court.

The material facts are not disputed. The note was dated on the 24th of July, 1907. It was indorsed by N. N. Maloof & Co. and discounted by the plaintiff prior to maturity, Maloof & Co. receiving a check from him for the face of the note, which was paid. Defendant did not pay the note at maturity, but telephoned one Camen, who was the manager of the plaintiff, the day the note fell due and called his attention to that fact, and at the same time said he did not want the note protested and asked the plaintiff to take it up and he would pay him. The plaintiff did as requested by giving to the bank which had discounted it for him a check for the face of it. In some way, just how does not appear, whether by accident or design, the note got into the possession of the defendant and from that fact alone it was claimed that the note was paid. There is no pretense that the defendant actually paid the note or that it was delivered to him by the plaintiff in pursuance of any agreement or understanding of any kind. All that the defendant claims is that Maloof & Co. on the day the note was given sent him two notes, one signed by Maloof & Co. payable to his order, which he kept, and the other, the note in suit, payable to Maloof & Co.’s order, which he signed and returned to them-; that this note was subsequently returned to him, whether by messenger or mail he could not say; that he was not present when the same was received, but he found it on his desk some time subsequent to the day it fell due ; that the only way he paid it was by .returning to Maloof & Co. their note.

It also appeared that the check which the plaintiff gave to Maloof & Co. when he discounted the note was delivered by Maloof & Co. to the defendant who had the same cashed. The defendant did not deny that he had requested the plaintiff through his manager, on the day the note fell due, not to have it protested but to take it up and he would pay it. Hor did he deny that two or three days thereafter the plaintiff’s manager called upon him and asked him to pay the note and that he then said he would look after it in a few days.

Just how it could be supposed that the defendant upon the facts stated was not liable it is difficult to imagine. The defendant was the maker of the note; it was his obligation and he was primarily liable, and the fact that the plaintiff — the second indorser — saw fit, in order to prevent its being protested, to pay it on the day it fell due, did not discharge the defendant’s liability. Section 200 of the Negotiable Instruments Law (Laws of 1897, chap. 612), which provides that a negotiable instrument is discharged when the principal debtor becomes the holder at or after maturity in his own right, has nothing to do with the question. The defendant never became the holder in his own right.” He was no more entitled to the possession of the note than if he had forcibly taken it from the plaintiff without payment. Plaintiff never intended to part with it without payment, and it requires something more than the possession of a promissory note, obtained either by accident or design, to extinguish the liability of the maker.

Instead of dismissing' the complaint the court, at the conclusion of the trial, should have directed a verdict for the plaintiff.

It follows that the determination and judgment appealed from must be reversed and a new trial ordered, with costs in this court and in the court below to appellant to abide the event.

Pattebson, P. J., Laug-hlin, Clabke and Houghton, JJ., concurred.

Determination and judgment reversed, new trial ordered, costs in this court and in the court below to appellant to abide event. Settle order on notice.  