
    Mechanics and Traders’ Bank v. Livingston et al.
    (City Court of New York
    General Term,
    June, 1893.)
    En an action upon a promissory note, defendants alleged by way of defense that they were accommodation makers. The evidence as to the conditions under which the note was delivered by the payees to plaintiff was conflicting. The trial justice charged the jury as follows: “ If you believe that those notes, the one in suit included, were given as collateral security for the note of §3,000, then plaintiff cannot recover.” Held, that this was an instruction to the jury that defendants could not be held liable upon the note in suit, if it, with the others, had been delivered to the bank as security for the §3,000 note, even though defendants had made and delivered the same for value received, because it was in proof that the bank had collected more than §3,000 on the other notes, and it was not error to exclude the proof offered by defendants that they were accommodation makers.
    Appeal by defendants from a judgment entered on a verdict returned by jury against them, and from the order denying new trial.
    
      Charles Si/rauss, for plaintiff (respondent).
    
      Geo. F. Ma/rtens, for defendants (appellants).
   Tan Wyck, J.

The plaintiff bank sues upon a promissory note made by defendants to order of Haas & Pohalski, and by them indorsed and delivered to the bank. The defendants allege by way of defense that they were accommodation makers of the note; that the payees delivered it, together with twenty-six other notes to the bank as collateral security for the payment of a note for $3,000, which such payees, at that time, made and delivered to the bank for value, and that the bank has collected $3,000 of such collateral twenty-six notes, and hence has been paid said $3,000 in full. The proof on trial as to the conditions under which the note in suit and the other twenty-six notes were delivered to the bank by Haas & "Pohalski was conflicting, the plaintiff bank contending by evidence that these notes were delivered by Haas & Pohalski, and left with it as collateral security for their account in general, and for any overdrafts they might make, and that they continued to make overdrafts every day up to the time of their failure, and that at the time of their failure they owed the bank about $10,000, and still owe it about $6,000. On the other hand, the defendants’ evidence shows that the note in suit and the other twenty-six notes were delivered to the bank specifically as collateral security for the payment of the $3,000 note, and that such note has been felly paid. The determination of these disputed questions of fact was properly left to the jury, under a careful charge by the court, to no part of which either side excepted, and by which the jury- were told that If you believe that those notes, the one in suit included, were given as collateral security for the note of three thousand dollars, then plaintiff cannot recover.” This was an instruction to the jury that defendants could not be held liable on the note in suit, if it, with the others, had been delivered to the bank as security for the $3,000 note, even though the defendants had made and delivered it to Haas & Pohalski for full value received, because it was in proof that the bank had collected more than $3,000 on the other twenty-six notes. Hence, it was not fatal error to exclude the proof offered by defendants, that they were accommodation makers of the note' in suit. And, moreover, the court instructed the jury, as requested by defendants’ counsel, “ That the burden of proof that the note was given for the future indebtedness of Haas & Pohalski to the bank was upon the plaintiff,” and that “ They must establish by a fair preponderance of evidence that the note was given as collateral for future indebtedness, and that unless they do, the defendant is entitled to a verdict.” By returning a verdict for plaintiff under these instructions, they found that the note in suit was given to the bank as collateral security, not for the $3,000 note, but for the future indebtedness of Haas & Pohalski to the bank, and, so finding, the defendants would be liable, although they were accommodation makers. The judgment and order appealed from are affirmed, with costs.

McG-own and Fitzsimoms, JJ., concur.

Judgment and order affirmed.  