
    Simon Bender, Appellant, v. Bahr Trucking Company, Defendant, Impleaded with Agatha Bahr, Respondent.
    Second Department,
    May 26, 1911.
    Bills and notes—Negotiable Instruments Law, section 114—indorse-ment before delivery — burden of proof—evidence — purpose for which note was given—trial — refusal to entertain further requests —when no coercion of counsel.
    A plaintiff, seeking to hold the indorser of a promissory note under section 114 of the Negotiable Instruments Law, which provides that where a person not otherwise a party to the instrument places his signature thereon in blank before delivery he is liable as an indorser to the payee and to all subsequent parties, where the instrument is payable to the order of a third, person, must allege and is under the burden of proving that the instrument was so indorsed before delivery. The burden of proving that the indorsement was prior to delivery is not upon the defendant.
    
      It seems, however, that where an indorsement before delivery is conceded, and the defendant seeks to qualify the indorsement by proof of a collateral agreement with the payee that he should not be liable to him, the burden of proof is upon the ’indorser.
    Where the indorser of a promissory note was the wife of a member of the corporation which made the note, it is not error to admit evidence that the notes were given by the maker for the purchase price of the horses upon which the plaintiff held a chattel mortgage which was subsequently foreclosed, for the circumstances and relation of the parties to the instrument was material upon the question of the method and the form of the delivery, and throws light upon the intention of the parties.
    Where there was no objection to proof of the foreclosure of the chattel mortgage evidence as to its existence is unobjectionable.
    A judgment, will not be reversed merely because when the jury returned for instructions the second time the court told the respective counsel that he desired no further requests in the presence of the jury where no further requests were made, and there was no exception to the court’s statement.
    Nor can such statement be deemed coercion of counsel which led them to abandon then rights.
    Appeal by the plaintiff, Simon Bender, from a judgment of the Supreme Court in favor of the defendant, Agatha Bahr, entered in the office of the clerk of the county of Kings on the 11th day of January, 1911, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 18th day of January, 1911, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Herman Joerg [David Siegelman with him on the brief], for the appellant.
    
      James A. Sheehan, for the respondent.
   Carr, J.:

The plaintiff sued on three promissory notes for $1,100, each made by the Bahr Tracking Company to the order of the plaintiff, and which were - indorsed by the defendant Agatha Bahr. The complaint alleges that each of the notes were so indorsed by the defendant Agatha Bahr before their delivery and for the purpose of giving credit to the instruments. The defendant Agatha Bahr in her answer denied that the notes were indorsed by her before delivery and alleged that they were indorsed by her after delivery at the request of the plaintiff, to enable him to have them discounted at á bank, and without any consideration for the indorsement. The plaintiff gave proofs tending to establish an indorsement by the defendant before delivery to him of the notes. The defendant met this with proofs tending to show that the notes were indorsed by her at the plaintiff’s request some months after the delivery of the notes. The trial court sent the issues to the jury, with instructions that, if they found that the' notes had been indórséd by Agatha Bahr before their delivery to the plaintiff, they should find a verdict for the. plaintiff for the amounts, thereof, with interest, less a certain sum credited thereon by the plaintiff. If, however, they found that the notes were indorsed after delivery under the circumstances testified to by the defendant, .then they should find.a verdict for the defendant.. The jury found a verdict for the defendant, and from the judgment entered thereon, aS well as from an order denying plaintiff’s motion for a new trial this- appeal was taken.

The appellant specifies several alleged errors by the trial court as causes for a reversal of the judgment. . The first of these, rulings arose as follows: The counsel for the- plaintiff requested the court to charge “ that the defendant Agatha 'Bahr must prove by a fair preponderance of evidence that she indorsed these note's for the benefit of the plaintiff. ” To which the court replied: “I think on your pleadings, the burden of proof is on you. ” To this the plaintiff excepted, The appellant contends that under section 114 of the Negotiable Instruments Law (Gen. Laws, chap. 50; Laws of 1897, chap, 612; Consol. Laws, chap. 38; Laws of 1909, chap. 43) a legal presumption arose against the defendant that she intendéd to become liable to the payee of the notes as a first indorser. This sectiofL. of; the Negotiable Instruments Law provides as ' follows: “ Where a person, not otherwise a party to an instrm ment, places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules: I. If- the-instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties.”' (Theh follow other rules not here involved.) It will be noted that in order to give this section.of the Negotiable-Instruments Law application, the signature of the party sought to be charged must have been placed on the instrmnent in blank before delivery thereof. Before the enactment of this statute the rule was as follows: “It was well settled in this State for many years prior to the enactment of the Negotiable Instruments Law that a person who puts his name on the back of a' bill or note before its- delivery, is presumably a second indorser and not liable to the payee, but the presumption could be rebutted by parol evidence to show that the intention of the indorser was to become surety for some prior party to the instrument.” (Haddock, Blanchard & Co. v. Haddock, 192 N. Y. 499, 507, and cases cited.) Therefore, to take advantage of section 114 of the Negotiable Instruments Law, it must be alleged and proved that the instrument was so indorsed before its delivery, and the burden of proof as to this fact is necessarily upon the plaintiff.

In the action at bar' the whole controversy at issue was whether the indorsement was made before or after the delivery of the note, and the plaintiff’s request to charge was refused properly. If, however, an indorsement before delivery had been conceded and the defendant sought to qualify the indorsement by proof of a collateral agreement with the payee that she should not become liable to him, then the request as to the burden of proof might have had some relevancy. (Haddock, Blanchard & Co. v. Haddock, supra.)

The next claim, of error is that the trial court received, over exception by the plaintiff, proof that the notes were given by the maker for the purchase price of horses upon which the plaintiff held a chattel mortgage, which was foreclosed subsequently. In view of the facts appearing at the trial, the admission of this evidence was not error. The defendant Agatha Bahr was the wife of a member of the corporation which made the note, and proof of the exact circumstances attending the relations of the parties to the instrument was material to the question of the method and form of its delivery. It could serve to throw light on the conduct and intentions of the parties at the time. Furthermore, there was no objection to the evidence as to a foreclosure of the chattel mortgage, the only objection being as to its existence. We think that no error was committed on this point, or, if there be any, that it was not sufficiently harmful to justify reversal.

Nor do we feel justified in interfering with the judgment because of complaints made by the appellant as to the conduct of the trial court after the jury had retired and then returned for further instructions from the court. It is complained that when the jury returned a second time for instructions the trial court said to the respective counsel that, he desired no further requests in the presence of the jury. Counsel made none nor took any exception to the court’s statement. If they or either of them felt aggrieved by the court’s statement, an exception should have been noted. Neither could stand hy and speculate on a chance for a reversal of an adverse judgment. It is urged, however, that the trial court’s statement really put the counsel in terrorem and so coerced them that they abandoned their legal rights. The record does not present such a picture, and we cannot.believe that such was the result. Nothing appears on this record to justify interference with the judgment.

The judgment and order should be affirmed, with costs. .

Jenics, P. J., Thomas, Woodward and Rich, JJ,, concurred.

Judgment and order affirmed, with costs.  