
    (70 Hun, 175.)
    WEEMS v. SHAUGHNESSY et al.
    (Supreme Court, General Term, First Department.
    June 30, 1893.)
    1. Negotiable Instruments—Bona Fide Holdebs.
    An indorsee of a note, who surrenders an old note, and pays the difference in cash, is a bona fide holder.
    2. Same.
    If the assignor of a note, after maturity and without consideration, was a bona fide holder, and entitled to recover thereon, the assignee can recover.
    3. Pleading—Amendment to Conform to Pboofs.
    Where, in an action on a note, there was evidence of a diversion, but no such defense was made in the answer, and judgment was rendered for-plaintiff, the appellate court will not amend the answer to conform to the-proof, as this is done, not to reverse, but only to sustain, a judgment.
    Appeal from circuit court, New York county.
    Action by Robert H. Weems against Michael Shaughnessy and1 another. There was a judgment for plaintiff, on a verdict directed by the court, for the full amount of the note and interest,, and defendants appeal.
    Affirmed.
    Argued before VAN BRUNT, P. J., and FOLLETT and BARRETT, JJ.
    Christopher Fine, for appellants.
    Peckham & Tyler, (C. A. B. Pratt, Jr., of counsel,) for respondent..
   VAN BRUNT, P. J.

This action was brought to" recover upon-a promissory note made by the defendant Shaughnessy to the defendant Moore, and which note was indorsed by the defendant. Moore to the firm of Donnell, Lawson & Simpson, for value, and before maturity, and was subsequently assigned and delivered by Donnell, Lawson & Simpson to the plaintiff.

The answer of the defendant and appellant Shaughnessy admitted the making of the note, denied that it was delivered for a valuable consideration, denied any knowledge or information sufficient to form a belief as to whether the defendant Moore delivered the note to the firm of Donnell, Lawson & Simpson, and, upon a similar averment, denied that the note was duly assigned and delivered by Donnell, Lawson & Simpson to the plaintiff. The answer further alleged that the note was made and delivered without any consideration whatever, and solely for the accommodation of the defendant Moore, and that the plaintiff had knowledge of that fact at the time mentioned in his complaint. Then follows an allegation that the plaintiff is not the real party in interest in said" action.

Upon the trial it was shown that the firm of Donnell, Lawson &r. Simpson received the note in question from Moore before maturity,, and at the time surrendered to him an old note of Moore for $3,000 and interest, and paid to him the balance in cash, and that subsequently, and after maturity, they transferred the.note to the plaintiff. Some evidence was introduced, tending to show that the defendant had given the note to Moore, to be used by him in releasing a mortgage on his home, in Orange, N. J.,—he having stated that he wanted it for that purpose,—and that the defendant had received nothing from Moore at the time of the giving of the note. Upon the close of the evidence the defendant moved for the direction of a verdict upon the ground that the evidence showed that the plaintiff had parted with no value. The court having announced its determination to direct a verdict for plaintiff, the counsel for the defendant asked to go to the jury upon the question whether the plaintiff parted with any value at all for this note, and whether Donnell, Lawson & Simpson were not, in law and in fact, the real owners of the note. This motion was denied, and the defendant excepted, and the court directed a verdict in favor of the plaintiff, to which an exception was taken.

It is claimed upon the part of the appellant that the court erred ip directing a verdict for the plaintiff, because he was not a bona fide holder, he having received the note after it had matured, and not having parted with any valuable consideration, and that, in any event, he should not have recovered more than the amount of cash paid by Donnell, Lawson & Simpson at the time they took the note, they having taken it in part payment of an old debt; and that the question as to whether Donnell, Lawson & Simpson were bona fide holders, by the surrender of the precedent note to Moore, should have been left to the jury, for their determination; and, furthermore, that the note was diverted, and, although the answer did not claim any diversion, there was evidence to that effect, and the court should, upon appeal, make the answer conform to the proof.

It seems to us that in all these objections the defendant has lost sight of the proposition that it is entirely immaterial what the plaintiff paid for the note in question. Donnell, Lawson & Simpson might have given it to him, and he would have a right to recover, if they had a right to recover. And the evidence is un contradicted that, upon the receipt of the note in suit, Donnell, Lawson & Simpson paid $1,900 in cash, and gave up to Moore his note, which constituted them bona fide holders.

The allegation in the answer is that the note was given for the accommodation of Moore. If he could not use it, and confer a good title upon the persons to whom he transferred it, the making óf the -note was no accommodation whatever. It has been endeavored to twist this defense into an allegation of diversion; but, although pleadings are sometimes made to conform to the proof in order to support a judgment, we have not yet heard of a case where such a practice was resorted to for the purpose of reversing a judgment. The court was right in holding that, if Donnell, Lawson & Simpson could recover, the plaintiff could recover, no matter whether he was a holder for value after maturity or not. There are no other exceptions to which it is necessary to call attention.

The judgment must be affirmed, with costs. All concur.  