
    Philip Kruelwitch et al., Respondents, v. William Meltsner, Impleaded, Appellant.
    (City Court of New York — General Term,
    June, 1895.)
    A defense in favor of an accommodation indorser is not available against the transferee from one who took the note for value before maturity without notice of the facts, although such transferee took the note in payment of an antecedent debt and had knowledge of the facts.
    Appeal by William Meltsner from judgment on verdict directed against him by the court on the opening of his counsel.
    
      Abraham.Levy, for appellant.
    
      A. D. Levy, .for respondents.
   Van Wyck, J.

The uncontradicted proof is that plaintiffs are the holders of a note for $400, made by the defendant copartnership firm to their own order and indorsed by them 'and then by William Meltsner, the only defending defendant, and thereafter, and before maturity, indorsed and delivered by one Sehreiber to plaintiffs in payment of his indebtedness of $400 to them.

The counsel of defendant Meltsner declared in his opening that he would prove that his client was an accommodation indorser; that the firm makers-payees of the note had failed, and that two years thereafter (but before the maturity of the note) a member of that firm went to Schreiber with this note and borrowed from him the money. But he did not state that he would prove that Schreiber knew of these facts or of any of the facts which he said he would prove that these plaintiffs knew of. The test is, could Schrieber have maintained this action on this note against this accommodation indorser had he continued the holder thereof? Assuming that tbe facts which counsel stated that he could prove would constitute sufficient defenses in favor of this indorser as against the makers-payees, still they would not be good defenses as against Schreiber, who lent the money on the note before maturity, and without notice of any of these facts, and his cause of action would have been perfect, and not subject to these defenses, and so too they "are of no avail as against these plaintiffs irrespective of the question whether they had notice of them or not, for they have acquired all the rights of Schreiber by his indorsement and delivery to them of the note, and the opening concedes that Schreiber had no notice thereof.

Judgment affirmed, with costs.

Eewburg-eb and Corlan, JJ., concur.

Judgment affirmed, with costs.  