
    (70 Hun, 371.)
    BUCYRUS STEAM SHOVEL & DREDGE CO. v. MEYER et al.
    (Supreme Court, General Term, First Department.
    June 30, 1893.)
    Accommodation Indorsement—Evidence.
    Defendants, in an action on a note, alleged that they indorsed the note for the accommodation of plaintiff, who agreed to protect them. The maker’s clerk testified that he was sent to procure defendants’ indorsement either by the maker or by plaintiff’s president, both of whom were in tile maker’s office at the time; that defendants refused to indorse the note without the written request of plaintiff’s president; and that witness wrote a letter to defendants stating that plaintiff requested the indorsement. Held sufficient to require the submission to the jury of the question whether the indorsement was for plaintiff’s accommodation.
    Appeal from circuit court, New York county.
    Action by the Bucyrus Steam Shovel & Dredge Company against Siegmund T. Meyer and Arthur L. Meyer, composing the firm of Siegmund T. Meyer & Son, impleaded with James A. Simmons, on a promissory note. Defendants Meyer were indorsers, and defendant Simmons was the maker, of the note sued on. From a judgment entered on a verdict directed by the court against the indorsers, and from an order denying a motion for a new trial, said indorsers appeal.
    Reversed.
    Nathaniel S. Bailey, called as a witness on behalf of defendants, testified as follows: “In 1890 I was secretary of the North American Dredging Company, and office manager for James A. Simmons, whose office and the company’s was at 45 Broadway. I recollect the occasion Col. Harris was at my office, about March 20, 1890, with reference to getting the indorsement of Siegmund T. Meyer upon a certain note. I believe it was with respect to the note marked ‘Exhibit B.’ At that time, or at some other time on that day, I had that note there, when Col. Harris was present, without the indorsement of Siegmund T. Meyer & Son. * * * I was asked either by Gol. Harris or Mr. Simmons—I don’t now feel positive which one—to go down to Mr. Meyer’s office with this note, and get his indorsement upon it. I saw Mr. Meyer. I saw Col. Harris when I returned, and had a conversation with him on the subject of this indorsement. I then had the note. I said to him that Mr. Meyer declined to indorse the note. He asked me to make another effort, saying that he wished to have the same indorsement on the paper as he had on the previous paper, so that he could use it at his bank. I told him that Mr. Meyer had said: ‘Send that note back to me with a letter stating that Ool. Harris requests my indorsement on the note, and I will place it there.’ That is all that was said.”
    
      Argued before VAN BRUNT, P. J., >and FOLLETT and PARKER, JJ.
    Melville H. Regensburger, for appellants.
    Howard Mansfield and Albert Symington, for" respondent.
   PARKER, J.

This is an action on a promissory note alleged to have been made by one Simmons, and indorsed by the defendants Meyer. Simmons did not answer, but the other defendants did, admitting the indorsement, but alleging, by way of defense, that the indorsement was made for the accommodation of the plaintiff, and upon an agreement with it that they would be protected and indemnified against the payment thereof. On the trial, Nathaniel S. Bailey testified that on March 20, 1891, the date of the note, he was the office manager for the maker Simmons; that he was requested either by the president of the plaintiff or the maker, and in the presence of both of them, to take the note in suit to the office of Mr. Meyer, to get his indorsement on it; that he failed to get the indorsement; and that, on his return with the note, he had a conversation with the president of the plaintiff, which he details as follows:

“I said to him that Mr. Meyer declined to indorse the note. He asked me to make another effort, saying that he wished to have the same indorsement on the paper as he had on the previous paper, so that he could use it at his bank. I told him that Mr. Meyer had said: ‘Send that note back to me with a letter stating that Ool. Harris [plaintiff’s president] requests my indorsement on the note, and I will place it there.’ * * * I wrote a letter to Mr. Meyer while Ool. Harris was there, in which I stated that this indorsement was at the request of the Bucyrus Company. This is the letter I wrote:
“ ‘45 Broadway, March 20th, 1890.
•“Messrs. S. T. Meyer & Son—Dear Sir: I inclose herewith a note dated this day at two months for $3,857.50, which the Bucyrus Steam Shovel and Dredge Company request that you indorse.
“‘Yours, truly, Jas. A. Simmons.
“‘Per N. S. Bailey.’
“The note came back indorsed.”

This is substantially all the evidence relating to the procurement of the indorsement. Other questions were asked of Mr. Bailey and excluded, which we think he should have been allowed to answer, in view of the fact that he went to Meyer with the acquiescence, if not at the request, of Col. Harris, and that it was Bailey’s report of what took place that led to the writing of the letter, stating that the plaintiff requested the indorsement. He was asked:

“Question. Did Mr. Meyer' say anything to you as to the purpose of malting any inquiries of you,—as to the purpose or object for which the Bucyrus Steam Shovel & Dredge Company wished the note? Q. Was anything said by Mr. Meyer at that interview as to whether the indorsement was for the accommodation of the Bucyrus Steam Shovel & Dredge Company? Q. Was anything said at that interview by you to Mr. Meyer as to the use which the note was to be put to?”

It may well be that answers to these several inquiries might have thrown some light on the question whether the indorsement was for the accommodation of the maker or the plaintiff; but, without other evidence than that disclosed by the record, the defendants were entitled to have the jury pass upon the question whether they were accommodation indorsers for the plaintiff or not. This right was denied them, the court directing a verdict in favor of the plaintiff. It is quite probable that the suggestion which appears in the record, that the plaintiff surrendered to the maker at the time of receiving the note in suit a note for substantially the same amount, bearing the indorsement of the defendants Meyer, may have had weisht with the court in determining that the defendants were not accommodation indorsers for the plaintiff. Their indorsement on the prior note is suggested only, not proved. It is alleged in the complaint, but denied in the answer. The note was not produced on the trial, nor was any competent evidence tending to show an indorsement received or offered. Had there been, the refusal of the court to permit the defendants to testify that they had not indorsed such a note would have constituted error. The judgment should be reversed, and a new trial granted, with costs to the appellants to abide the event. All concur.  