
    Arlando Marine, Respondent, v. Simon Peyser et al., Appellants.
    (City Court of New York—General Term,
    May, 1894.)
    In an action upon a promissory note, brought by a transferee thereof, the answer alleged that it was purely an accommodation note, given to contractors at a time when nothing was due them, to enable them to obtain money by its discount to enable them to carry on the work, and that the same was transferred to the plaintiff in payment of, or as security for, an antecedent indebtedness of the contractors to him. The plaintiff admitted that he received the note after maturity and in payment of a precedent debt,- but the evidence was conflicting as to the arrangement under which the note was given, and as to whether the note was to be discounted. Held, error for the court to charge that there had not been any fraudulent diversion of the note, as that, under the conflict of evidence, was a question for the jury to determine. (Ehrlich, Ch. J., dissenting.)
    Appeal from a judgment in favor of the plaintiff, entered upon the verdict of a jury.
    
      Or mist on da JDorsett, for respondent.
    
      Fromme Brothers, for appellants.
   McCarthy, J.

This is an appeal by the defendants Peyser, Wolf and Eisenberg from a judgment in favor of the plaintiff, entered upon a verdict of a jury.

The action is brought to recover upon a promissory note of $1,000 and interest, and the complaint alleges, in substance, the making of the note by Peyser, and delivery thereof by him to one Dempsey & Smith, named as defendants herein, and their delivery thereof to Eisenberg, and his to Wolf, and thereafter by mesne indorsements to plaintiff.

The answer, in substance, admits the making of the note, but put in issue the other material allegations. They allege that the note was given without consideration, and deny that it was indorsed and delivered by Dempsey & Smith to Eisenberg, and then by him to Wolf, but allege that the note was purely an accommodation note, and that the indorsements were purely accommodation indorsements, with the use of said note restricted to a special purpose, to wit, to enable Dempsey & Smith to procure discount thereof to raise money wherewith to be enabled to carry on certain work, and for no other purpose. But that, after procuring the said note and indorsements in this way, Dempsey & Smith diverted the same fraudulently from the purposes for which it was given and passed the same in payment of or as security for a precedent indebtedness of theirs- to plaintiff, of all of which plaintiff had knowledge.

On the trial the appellants had the affirmative.

It appeared that Dempsey & Smith were contractors, and had contracted to do certain stone work, and upon performing such work in the manner provided for in the agreement between them and Peyser would be entitled to certain payments, and at certain times, and under certain conditions.

It was claimed that at the time of the giving of the note in suit there was nothing due or payable to Dempsey & Smith, they not having done their work, and not able to prosecute the same, and also that there was advanced some casi;, and upon the express understanding that the plaintiff should have it discounted, and then advance the money to Dempsey & Smith.

Under the contract the payment had not become due when the note was given, and plaintiff had knowledge of all these facts. And the other indorsements were procured in like manner.

The defendants further established that Dempsey & Smith did not perform their contract, and the work was never properly done.

The plaintiff unqualifiedly admitted that he received the note after maturity, and further admitted that the note was passed in payment of. a precedent debt. This stone had been delivered a year prior to the making of the note.

The court, at the request of the plaintiff, charged the jury, “that there has not been any fraudulent diversion of this note,” to which defendants duly excepted.

Upon a careful examination of the case we think the trial justice erred in charging as above requested, for the evidence clearly presents this among the issues of fact to be determined, and, therefore, ought to have been submitted to the jury. The agreement to indorse notes does not take away, in the least, the question at issue, to wit, for what purpose was this note given, and was it fraudulently diverted. ,

The defendants had the affirmative, and presented their side at the opening of the trial. Eisenberg, one of the defendants, testified, among other facts, as follows: “Well, he started to work again, and Mr. Dempsey and also Mr. Marine called at my office, and Mr. Marine said, ‘Well, Mr. Dempsey can’t get the buildings inclosed, and you had better give him your note and I will give you mine, and I can get your note discounted and you get mine discounted, and it will help Mr. Dempsey along so that he will go ahead with his work,’ and T said to Mr. Marine, ‘ I cannot swap any notes with you; I will do this,’ I said, ‘ it is not due yet, the one thousand dollar payment; $240 was put on by a lien by the representative of Dempsey & Smith,’ and I said, ‘I will give you $760 in cash and $1,000 in my note, providing you will take care of it when the note becomes due, and will carry it out according to the contract,’ and Mr. Marine said he would do so. "x" * * About the 10th of October, 1802, Mr. Marine called upon me, and he said I should help Mr. Dempsey along; to advance him money to go ahead with the building so that they could get the building inclosed before the cold weather came along. And Mr. Marine offered to give me his note for $1,000, and that I should give him mine, and I should get his note discounted and help Mr. Dempsey, and Mr. Marine offered to get his note discounted and help him along, and I refused to do so, and I said I had trouble with it before and I thought I would keep away from trouble,"and I offered Mr. Marine this, I said. ‘ If you carry out the contract, which is not due yet, but will be due, I will give the $1,000 note and also $1,000 in cash payment.’ I said to Mr. Marine, ‘ I refuse to take your note ; I will advance him the cash payments of $760, which, with the $240 which was put on a lien against Dempsey & Smith on the property by the man that was employed by Dempsey & Smith, would make the $1,000,’ and $1,000, my note, which I would give to Mr. Dempsey, and Mr. Marine should get it discounted and advance him money; and I made the note out, and Mr. Marine was in the office at the time, and I indorsed it right over and gave it to Mr. Marine, and about a couple of weeks after, when Mr. Dempsey called around, I asked him —

“ The Court.—Is this the note you speak of in suit ?
“ Witness.—Yes, sir.
“ By Defendant’s Attorney.—And that was all that was said before I gave him the note. I gave him the note.
“ That note was given to Dempsey & Smith in the presence of Mr. Marine. It was given to Dempsey & Smith to help Messrs. Dempsey & Smith; it was given to Mr. Marine to help Dempsey & Smith. Mr. Peyser did not owe Mr. Marine any money. The note was given to Dempsey & Smith. Mr. Peyser did not owe Mr. Dempsey at that time, and he turned the note over to Mr. Marine. I knew Mr. Marine furnished the stone for that building.”

Wolf says: “And Mr. Eisenberg and Mr. Peyser said it would take so long to make a man who goes on a bond to complete his work that the building would go to rack and ruin, and we might better give these people the note they want so as to assist them, and then if we have no redress we can sue on the bond.”

The plaintiff says that the note was given to him for an antecedent debt.

Dempsey says: “ I remember the giving of the note on October fifteenth of $1,000. At that time the buildings were topped out. I never asked Mr. Eisenberg for any advance. I did not say to him that if he would give me that note that I would have it discounted and raise money on it.

Here there was clearly a conflict, and thus a question of fact, raised between the testimony of Eisenberg and Wolf on one side and Marine and Dempsey on the other as to the arrangements under which the note in suit was given and as to its fraudulent diversion.

This, then, should have been left to the jury; for, when the facts are uncertain or there is a conflict in the evidence, the question must be submitted to the jury. Potts v. Mayer, 74 N. Y. 594; Marine v. Peyser, 6 Misc. Rep. 540; 27 N. Y. Supp. 228.

Judgment should, therefore, be reversed and new trial ordered, with costs to the appellant to abide the event.

Van Wyck, J., concurs; Ehrlich, Ch. J., dissents.

Judgment reversed and new trial ordered, with costs to appellant to abide event.  