
    Bernhard French, Respondent, v. John E. Hoffmire et al., Appellants.
    Appeal from a judgment in favor of plaintiff, entered upon verdict directed by the court, and from order denying motion for a new trial.
    Guggenheimer, Untermyer & Marshall, for appellants.
    Henry W. Heifer, for respondent.
   Conlan, J.

This is an appeal from a judgment rendered in favor of the plaintiff and against the defendant by direction of the court, and from a denial of a motion for a new trial.

The action was brought to recover on a promissory note made by the defendant Hoffmire to the order of the defendant Davis, who procured the same to be discounted by the plaintiff herein.

The maker alone defended on the ground that the note was accommodation paper in the hands of Davis, the payee, and that the plaintiff discounted the same at a usurious rate of interest.

That an amount in excess of the regular rate of interest was retained by the plaintiff is not disputed, but it was claimed by the plaintiff that Davis, the payee,, was the agent of the maker of the note and bound him by his representations as to the character of the note.

The plaintiff testified that Davis represented the note to be business paper and given in payment for lumber.

Davis would not affirm or deny this representation.

We have examined the evidence with some care and have been unable to find the relation of principal and broker or agent existing between the maker and the payee of the note, and therefore, not within the rule laid down in Ahern v. Goodspeed, 9 Hun, 263.

Davis was not getting the note discounted for the maker, but for his own benefit, paying his debts with the proceeds, He could not enforce payment from the maker,' and it follows, therefore, that the note never had a legal inception in the hands of Davis; that its transfer to or discount by the plaintiff was at the regular rate of lawful interest is conceded. The case, therefore, falls directly within the ruling in Eastman v. Shaw, 65 N. Y. 522, but aside from the question of usury, we think the court erred in excluding the testimony of Ookefair, and' the judgment should be reversed.

Judgment reversed, with costs .to the appellants to abide the event.

.Fitzsimons and McCarthy, JJ., concur.

Judgment reversed, with costs to appellants to abide event.  