
    Carter-Rice Company, Resp’t, v. John Howard, App’lt.
    N. Y. C. C.,
    February 7, 1896.
    D. A. Spellissey, for app’lt;
    H. A. Sperry, for resp’t.
   VAN WYCK, C. J.

The plaintiff is the payee of the note sued upon, and defendant indorsed it for the maker before its delivery to plaintiff. The common pleas has held in this case that the statements made to and by the defendant when be indorsed the note were sufficient to overcome the legal presumption, from the irregular indorsement itself, that the irregular indorser was only liable as second indorser. The proof of the statements to and by the defendant at the time of the indorsement were substantially the same on both trials. The disputed questions of fact were submitted to the jury without objection or exception by defendant to the judge’s charge. The judgment and order are affirmed, with costs. All concur.  