
    Francis Higgins, as Receiver, App’lt, v. James J. Ridgway, Resp’t.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed November 15, 1895.)
    
    
      2. Bills and notes—Accommodation endorser.
    An agreement between a president of a bank and an accommodation endorser that the latter would not be held on a note, is a defense to his liability thereon.
    
      2. Evidence—Bills and notes.
    In such action, it is competent to prove by the accommodation endorser that he received no benefit from the note.
    Appeal from a judgment, entered on a verdict in favor of defendant, and from an order denying a motion for a new trial, made on the minutes.
    
      Benjamin Yates, for app’lt; Edward P. O'Dwyer, for resp’t.
   Follett, J.

This action was begun February- 23, 1893, to recover on a promissory note made and indorsed by the defendant October 31, 1890, whereby, for value received, he promised to pay to his own order $14,250, three months after date, at the North River Bank, in this city. The defense interposed is that the note was made and indorsed for the accommodation of the bank, and upon the agreement of its president that the defendant should not be held liable thereon. At the time the note was made, the defendant was a clerk of Paige, Carey & Co. Mr. Paige, the senior partner, was a director of the North River Bank, and had extensive dealings therewith.' The defendant testified that, in 1889, Mr. Gedney, the president of the bank, requested him to make a note for $15,000, but that he objected, saying that his note for that amount would not be good, and that he did not wish to do it; that Mr. Gfedney replied: “The note is for the bank. You will get nothing for it, and you will not be held on the note.” The defendant made the note, which was passed to the bank, and went to the credit of the account of Paige, Carey & Co. This note was four times renewed, the last renewal being the one in suit. When or by whom the indebtedness to the bank was reduced from $15,000 to $14,250 does not appear. The defendant testified that, when the note was last renewed, he objected to signing it, and that Mr. Gedney replied: “You take no risk. You are not held on the note, and you assume no obligation.” The defendant received no benefit from the original note or any of its renewals. The cashier of the bank testified that the' avails-of the first note, of which all others were renewals, were credited to the loan account of Paige, Carey & Co. It is conceded that the defendant’s indorsement was an accommodation one, and that he received no benefit therefor, which fact was known to the president and cashier of the bank. The president of the bank was sworn as a witness, and denied that he told the defendant that he would not be held on this note; but he testified that the defendant objected to signing the original notes and its renewals, and he told, him that he did not think he would be called upon to pay it. The trial court submitted but a single question to the jury, which was whether there was an agreement between the president of the bank and the defendant that he would not be held liable on the note. The jury were instructed that, if such an agreement were not made, they must find for the plaintiff, but, if it were, they must find for the defendant. To this instruction the plaintiff excepted, which is the only exception taken by the counsel for either party to the charge. The agreement testified to by the defendant, and found by the jury to have been made, was a defense to,the note. Garfield Nat. Bank v. Colwell, 57 Hun, 169 ; 32 St. Rep. 929. There is no. distinction, in principle, between the case cited and the one at' bar. This note was never delivered by the defendant, nor received by the bank, for the purpose of charging the defendant with liability thereon.

It is urged that the plaintiff’s exception to the following question was well taken : “Q. Was there ever credited to you with the North River Bank any suin'of money or any credit by reason of the note in suit, or any of its predecessors ?” The defendant answered, “Mo.” It was entirely competent to show that the defendant received no benefit from the note. The cashier of the bank so testified at folio 52. It cannot be said that the verdict of the jury was contrary to the evidence. It was simply a question of credibility between the defendant and the president of the bank; and the circumstances under which the note was made, the way the avails were used, and the situation of the defendant, who was a mere clerk of Paige, Carey & Co., to whose credit the avails were placed, strongly tended to render it highly probable that the defendant testified to the truth.

The judgment and order should be affirmed, with costs.

All concur.  