
    The Twenty-sixth Ward Bank of Brooklyn, Appellant, v Caroline W. Stearns et al., Impleaded, Respondents.
    (City Court of Brooklyn—General Term,
    February, 1894.)
    In an action upon promissory notes the indorsers defended on the ground that the notes were accommodation paper and the indorsements were made upon condition that the notes were not to he delivered unless the indorsement of another person was procured, which was not done. Th& notes were drawn and the signatures thereto procured by the counsel for the plaintiff, who was also one of its directors. The evidence as to' the making of the condition was conflicting. Held, that it was the duty of the plaintiff to show, if it could, that such director and counsel was not acting for it in making the alleged agreement as to the conditional indorsement, and that a verdict in favor of the defendants would not he disturbed.
    Appeal from judgment in favor of defendants, entered upon verdict, and from order denying motion for a new trial on the minutes.
    
      Ghas. M. Earle, for appellant.
    
      Edwcvrd G. Whitaker, for respondents.
   Osborne, J.

Action on two promissory notes made by George W. Stearns, Jr., to order of W. B. Thomas, and indorsed by Thomas and the above-named defendants, who alone defend. The defense set up was that said notes were accommodation paper, and that these defendants indorsed only on the condition that the notes were not to be delivered unless the wife of W. B. Thomas also became an indorser, of all of which the plaintiff had notice.

It appeared on the trial that the notes in suit were given in renewal of four certain notes held by plaintiff, made by Stearns, Jr., and indorsed by Thomas and Stearns, Sr., one of which notes had matured and been protested, and the others were about maturing; on these notes Caroline H. Stearns was, not an indorser.

That the defendants had a right to make a conditional indorsement cannot be questioned. The making of any condition with reference to the indorsement of the notes in suit was denied by the plaintiff. This issue was left to the jury to determine, and it has rendered a verdict in favor of these defendants, which we see no reason for disturbing. It appeared from the testimony that Mr. Kiendl was counsel for the plaintiff at the time the notes in suit were indorsed; that he drew the notes himself and obtained the signatures of the makers and indorsers thereon, and delivered the notes to the plaintiff, who accepted them and has brought this action upon them. There was no attempt on the part of the plaintiff to explain how these notes came into its hands other than through the instrumentality of Mr. Kiendl, who was acting as its counsel, and was also one of its directors. The plaintiff here seeks to obtain the benefit of these notes procured for it by IVIr. Kiendl, and it was for the plaintiff to show, if it could, that Mr. Kiendl was not acting for it in making the alleged agreement as to the conditional indorsement of ■ these defendants. The jury, by its verdict, has substantially found that such .agreement was made, and we think that the verdict is supported by the evidence.

As to the defendant George W. Stearns, Jr., we may further add that, as the jury has found that the defendant Caroline H. Stearns is not liable on her indorsement, he, as a subsequent indorser to her, is relieved from liability.

The judgment and order denying motion for a new trial should be affirmed, with costs.

Van Wyck, J., concurs.

Judgment and order affirmed, with costs.  