
    Ephraim C. Gates et al., Resp'ts, v. Ellen Williams, App'lt.
    
      (City Court of New York, General Term,
    
    
      Filed April 14, 1893.)
    
    1. Bills and notes—Irregular indorsement.
    In an action upon a promissory note by the payees against one who» indorsed it prior to its delivery, the complaint alleged that it was delivered to them so indorsed to pay for building materials furnished by plaintiffs to defendant, but the only testimony on that question was a conversation with defendant’s husband in which plaintiffs agreed to deliver the materials if they could charge it to her, and the husband said she agreed to it, but no ratification by her was shown, and both she and her husband denied any authority on his part to act for her, or that she agreed to have the materials charged to .her. Held, that the complaint should have been dismissed.
    2. Same.
    The presumption that a person making such an indorsement intended to become liable only as second indorser and not liable to the payee, is not overcome by proof that he indorsed to give the payee credit with the bank of discount.
    Appeal by defendant from judgment entered on verdict directed against her.
    
      G. W. Stephens, for resp’ts ; Jas. A. Deering, for app’lt.
   Van Wyck, J.

Messrs. Gates & Co., the plaintiffs, sue Mrs. Williams, the defendant, upon a note made by Fritz & Hafner to the order of Gates & Co., and indorsed by her before delivery to them, and their complaint recognizes that from the instrument . itself the presumption of law'is that she intended to become liable simply as a second indorser, Coulter v. Richmond, 59 N. Y., 481, for it is further Alleged therein that this note was made and in dorsed and delivered to.them as so indorsed for the purpose of paying for building materials furnished by them to her. Except for this latter allegation, the complaint would have been demurrable ; hence the plaintiffs’ cause was maintainable only upon proof thereof. And upon this theory the case was tried, but they failed to prove by legal evidence that they bad furnished the-materials to her, or upon her credit, for their only proof upon this question was that of their Mr. Barnard, who testified: “I told him, (her husband), I was willing to supply the lumber if we could charge it to Mrs. Williams * * * and he said she agreed to it” and continuing, he testified : “ I can’t swear to anything about his wife any more than what he told me.” This evidence was taken against defendant’s objection, and allowed upon the statement of plaintiff’s attorney, “We will show that she-ratified it.” However, the proof does not.show that she ratified it, nor does it show any authority by her husband to act for her. At the close of plaintiffs’ case the defendant was entitled to anon-suit, and her motion to dismiss then made should have been granted instead of denied. The defendant’s proof in no way closes these gaps in plaintiffs’ proof as to ratification by her and authority by her husband, for they both testify that he had no such authority, and that she had never agreed to have the lumber charged to her. The defendant’s motion to dismiss on the merits at the close of the case should have been granted.

The plaintiffs insist, however, that although their complaint did not allege that Mrs. Williams indorsed the note under an agreement to give the makers credit with the payees, these plaintiffs, still that the proof shows that she indorsed it under such an agreement. But such is not the proof, for Mr. Robinson, plaintiffs’ collector, who conducted the negotiations as to this indorsement, testifies, “ I don’t know what -was said to Mrs. Williams when she signed this note; I represented to her husband that we wanted to get money on the note at a bank; I wanted to get it in the right shape, so it could be negotiated.” And Mr. Fritz, who really induced Mrs. Williams to indorse the note, testifies : “ I can repeat my exact words in asking Mrs. Williams to indorse this note; I told Mrs. Williams that Grates & Co. wanted to raise money on the note, and they couldn’t do it with my name; and I asked her if she wouldn’t be kind enough to indorse that note so they can have it discounted, and she did so.” It is in proof that the note was discounted by a bank for plaintiffs (the payees) and protested for non-payment, and subsequently taken up and now held by plaintiffs. This proof does not show that Mrs. Williams indorsed the note for the purpose of giving the makers credit with the payees, but rather that she indorsed it to give the payees credit with the- bank of discount, and certainly does not overcome the well settled presumption of law, that a person making such an indorsement intended to become liable only as a second indorser, and that on the face of the paper, without explanation, she is tobe regarded as second indorser, and, of course, not liable upon the note to the payee, who is supposed to be the first indorser. Judgment reversed and new trial granted, with costs to appellant to abide the event.

McG-'owit and Fitzsimons, JJ., concur.  