
    Western National Bank v. Wood.
    (New York Common Pleas—General Term,
    November, 1892.)
    An indorsee of a promissory note taking the same with knowledge that the consideration therefor has failed, cannot recover thereon in an action against the maker.
    Appeal from a judgment of the General Term of the City Court affirming a judgment for plaintiff, which was entered on a verdict directed by the trial court, and an order denying defendant’s motion on the minutes for a new trial.
    Action by the Western National Bank of the city of New York, as indorsee, against Frederick Wood, as maker, upon a, promissory note.
    .Charles F. MaoLecm, for plaintiff (respondent).
    
      Artemas B. Smith and Henry H. Bowman, for defendant (appellant).
   Bischoff, J.

Plaintiff, as indorsee, sued defendant Wood to recover upon a promissory note made by him to the order of J. Wesley Smith, by whom it was indorsed, and thereupon delivered by Wood to the Homestead Bank, before maturity. Wood did not dispute the making of the note, nor its delivery to the Homestead Bank, but asserted, as a defense to any liability on his part, that the note was made and delivered to the Homestead Bank to secure it for the repayment of an equivalent sum advanced to Wood to enable him to complete certain buildings, then in course of construction, for their joint account; that it was agreed that the sum so advanced should be repaid out of the proceeds of a permanent loan upon or the sale of the buildings when completed, and not otherwise; that the buildings were neither completed nor sold, and that the loan had not been procured; and that plaintiff received the note from the Homestead Bank with knowledge of the facts.

On the trial, defendant Wood testified to the fact of an oral understanding between himself and the officers of the Homestead Bank, with the sanction of its board of directors, substantially in accord with the agreement above mentioned, and that plaintiff’s cashier had knowledge thereof before the note was indorsed and transferred by the Homestead Bank to plaintiff. When both sides rested, plaintiff’s counsel moved for the direction of a verdict for plaintiff, which was opposed by counsel for defendant, who asked that the fact of the agreement be submitted to the jury for determination. The court granted plaintiff’s motion and defendant duly excepted.

The facts appearing in evidence from defendant Woods’ testimony, constituted a complete defense to his liability on the note, and it was, therefore, error to direct a verdict for the plaintiff, for which the judgment and order appealed from must be reversed. Precisely the same question has been determined by us in Homestead Bank v. Frederick Wood, impleaded, etc., the opinion wherein is herewith handed down, the two cases differing only in that in Homestead Bank v. Wood, impleaded, etc., the action was between indorsee and indorser, while here it is between an indorsee, with notice, and maker; but what has been said with reference to the one applies with equal force to the other.

The judgment of the General and Trial Terms of the court below, and the order denying defendant’s motion for a new trial, should be reversed and a new trial had, with costs to the appellant to abide the event.

Daly, Ch. J., and Pryor, J., concur.

Judgment reversed, new trial ordered, costs to abide event.  