
    Charles Palmer, Resp’t, v. William D. C. Field, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed February 16, 1894.)
    
    1. Bills and Notes—Accommodation indobseb.
    In the absence of any claim of diversion, the holder need not show that he paid to the accommodation indorser any value for his indorsement, if the loan was made in reliance on such indorsement.
    2. Same—Joint and sevebal.
    Where negotiable promissory notes purport to bear several signatures as indorsers, the presumption is that the obligation is several, and not joint.
    3. Pleadings—Answer—Abatement.
    In order to a good plea in abatement, it must aver that the person not joined is alive and within the reach of the ordinary process of the court.
    Appeal from a judgment entered on a verdict, directed by the court in favor of the plaintiff.
    
      Fred T'K Hinrichs, for app’lt; Michael IT. Cardozo, for resp’t.
   O’Brien, J.

The complaint contained two causes of action, based on two promissory notes, which were in all respects similar as to dates, payees and indorsers. These notes were for $4,500 a piece, and it was made to appear by the evidence that they were renewals growing out of a transaction in which originally a note for $10,000 was delivered to plaintiff in consideration of a loan or discount made by him. The original note was from time to time renewed, and finally divided into two notes of $5,000 each, upon which $1,000 was paid ; leaving the balance sued upon, of $9,000, represented by the two notes of $4,500 each. One of the defenses was that the indorsers, including the defendant here, were accommodation indorsers. But inasmuch as it was made to appear by the testimony that the plaintiff , upon the faith and strength of the indorsements, advanced the money on the note by way of loan or discount, this defense was not made out, nor do we understand that it is seriously pressed, because, even assuming that defendant was wholly an accommodation indorser,—there being no claim of any diversion,—it was not necessary to show that plaintiff paid any value to him for his indorsement, where the fact appeared that, upon the faith of the indorsement, plaintiff had loaned the amount represented by the note. In other words, the consideration paid to the maker of the note, or to the person delivering it to plaintiff, was amply sufficient to support a recovery, under the authorities. This justified the rulings of the court in excluding evidence which attempted to show that the indorsement w.as without consideration directly paid to him. If, however, it was material to show that the defendant was not, in a strict sense, an accommodation indorser,-it was made to appear that, by a resolution of the company for whose benefit this note was discounted, and i n which the defendant was an officer, he was voted a compensation of $500 a year for endorsing the paper of the companyl

The defense which was mainly relied upon at the trial, and most strongly urged upon this appeal, is that the liability of the-defendant was not a several but a joint one, and- that, there being a defect of parties, the complaint, upon his motion, should have been dismissed. '

The first question upon this defense is whether it was properly pleaded. The answer stated that the notes were joint obligations-of defendant and others, whose names were given, and upon the-trial defendant was allowed to arqend the answfer by setting up that, the failure to include such persons was a defect of parties defendant. As thus amended, however, we do not think that the plea was sufficient to raise the'defense. The rule has been many times stated that “ to make a plea in abatement good, when it is based upon the nonjoinder of a party defendant, the plea must aver that the person not joined is alive, and within reach of the ordinary process of the court." Lefferts v. Silsby, 54 How. Pr. 194; Scofield v. Van Syckle, 23 id. 97; Brainard v. Jones, 11 id. 569; Burgess v. Abbott, 6 Hill, 135. Although. this objection was specifically taken, the defendant was permitted to .examine the plaintiff upon1 the question, and to ask him -whether the endorsements upon the paper were not given to him as joint endorsements, to which he-replied: “ I never heard of such a thing. As a matter of fact I did not discuss the question of joint or, several liability at all.” And plaintiff further testified that the original note was handed to him with the indorsements already there, and that he then discounted it.

Some point is made of the fact appearing that the names of the payees in the series of notes were not always the same, nor the indorsements placed in filie same order upon the back ; and upon this is based the argument that a presumption arises that the obligation was a joint one, and not several, and that, no facts to> rebut such presumption having been given by plaintiff, the motion made to dismiss the complaint at the end of plaintiff’s case, and again when all the testimony was in, should have been granted. To this we think there are two answers: It must be remembered that, upon a renewal of the note, it was perfectly proper and competent for the plaintiff to insist; as a consideration for such extension, on a change in the form of the obligation ; and it was. equally competent for the' indorsers to comply with any such suggestion, and the agreement for the extension would have given support to any change in the indorsements. Secondly, although the defendant, in his statement of the rule as to the presumption, relies on a case in Missouri, we do not think that such is the law' in this state; but, on the contrary, the authorities are all the other way, holding that where, as here, the notes purport to bear the several signatures of parties as indorsers on promissory notes which are negotiable, the presumption is that the obligation is several, and not joint.

The defendant, though eliciting from the plaintiff the statement that the notes were not taken with the understanding that the indorsers were to be jointly liable, endeavored, by his own testimony, to show that he had conversations with the plaintiff in regard to the notes and the indorsements thereon; and several questions which were asked of him by his counsel, as to conversations with the plaintiff about the form of the notes, or as to whether they were to be made out to the order of plaintiff, and the general question as to what the plaintiff said in regard to the indorsement or the making of the notes, were excluded, and án exception to such ruling was taken. If the plea had been properly made, we think that these questions, directed, as they might fairly be held to have been, to eliciting what was the arrangement in regard to the taking of the notes by plaintiff, would have been competent and admissible. The specific objection, however, having been taken, that the plea in abatement was insufficient, these rulings were right.

As the case, therefore, stood, upon the evidence, the court was justified in denying defendant’s motion to dismiss the complaint, and in refusing to submit the case to the jury. This request to go .to the jury , after moving to dismiss, was in general terms; and as said in Mayer v. Dean, 115 N. Y. 556 ; 26 St. Rep. 375, “ did not state any question of fact desired to be submitted to the jury.” Upon the pleadings, therefore, and the evidence as presented, the rulings excluding or admitting evidence were correct, and nothing remained but to grant the request of plaintiff for a direction in his favor. The judgment was, therefore, right, and should be affirmed, with costs.

All concur.  