
    Cornelius V. Anderson and another v. Richard Busteed.
    An endorser of negotiable paper is not an assignor within the meaning of the Code. His examination as a witness does not render the party against whom he is examined a competent witness under § 399 of the Code. But where the adverse party has been examined as a witness, and is nevertheless defeated on the trial, the objection that he was improperly admitted, cannot he raised by the prevailing party, although made on the trial, on the argument of a motion for a new trial, as an answer to such motion.
    Having been admitted as a witness, although improperly, if it appear that any material question put to him, that ought to have been allowed, was overruled, a new trial must be granted, since the court cannot say, that had the evidence thus excluded been received, the same verdict or judgment would have been rendered.
    An endorsee of a dishonored check, who has knowledge of the fact, takes it subject to every defence legal or equitable that could have been made against his endorser.
    (Before Duer, Bosworth and Slosson, J. J.)
    March, 1856.
    This was an action by the plaintiffs as endorsees of a bank check, payment of which had been refused, against the defendant, as drawer. The check, as set forth in the complaint, was dated on the 26th of February, 1855, drawn on the Bull’s Head Bank, for the sum of $131, payable to P. McAleer or order, and endorsed by him to the plaintiffs.
    The answer admitted the making of the check, but denied that it was given for value, and denied the title of the plaintiffs, and set up as a counter claim, that the payee, McAleer, was indebted to the defendant for professional services in a larger sum than the amount of the check, and averred, that the plaintiffs took the check with knowledge of this fact, and a month after its date. The cause was referred to R. E. Mount, Jr., as sole referee, who reported that the plaintiffs were entitled to recover $138.69, besides costs. Judgment for this sum with costs was accordingly entered, from which the defendant appealed, and the cause was heard upon a case settled by the referee, and containing the proceedings upon the trial before him.
    It is not deemed necessary to state any other of the proceedings upon the trial than those, which have an immediate bearing upon the questions decided by the court.
    It was proved that the check was given by the defendant to McAleer, the payee, on the 28th of February, for the amount that McAleer alleged was then due to him, and that at the time it was given, the defendant insisted that McAleer was indebted to him in the sum of $80 for professional service as attorney and counsel. That the defendant stopped the payment of the check immediately after he gave it, and that the bank accordingly refused to pay it when presented. That McAleer, about a week thereafter, endorsed and delivered the check to Anderson, one of the plaintiffs, and told him that payment had been stopped and refused. The check was endorsed to the plaintiffs on account of a debt of $200 then owing to them by McAleer.
    McAleer was examined as a witness on behalf of the plaintiffs, and stated what had passed between him and the defendant when the check was given, and the defendant then offered himself as a witness on his own behalf to the same matters. The counsel for the plaintiffs objected to his admission. The objection was overruled and the counsel excepted.
    The defendant then, being sworn, testified, among other matters, that, on the morning that he gave the check, McAleer wished him to deduct the amount of his bill against him for professional services, and that this amount was $80. He was then asked “ whether that bill had not been previously adjusted between McAleer and himself?” The counsel for the plaintiff objected to the question. The referee sustained the objection, and the counsel for the defendant excepted to the decision. Other questions, substantially of the same import, and tending to prove the set-off claimed by the defendant, were afterwards put to him, which, in like manner, were overruled by the referee, and exceptions taken to his decisions.
    
      M. M. Ely, for the defendant,
    insisted that the report of the referee was contrary to law and evidence, and ought to be set aside, and the judgment thereon reversed; and that especially the referee had erred in overruling the questions put to the defendant, the answers to which would have shown that he was clearly entitled to the set-off that he claimed.
    
      Pomeroy, for the plaintiff,
    argued at length that the report of the referee was sustained by the evidence, and unobjectionable in law. He contended that the questions put to the defendant were properly overruled; that the referee had erred in admitting the defendant to testify at all, and that his whole testimony ought, therefore, to be stricken from the case. He cited Hicks v. Worth, 10 How. Pr. R. 555, and Watson v. Bailey, 2 Duer, 509.
   By the Court. Slosson, J.

The defendant was improperly admitted as a witness, as McAleer was not an assignor, within the meaning of section 399 of the Code; but of this the plaintiff cannot now complain. If the plaintiff’s objection had prevailed on the trial the defendant might have supplied, by other evidence, what he has now established by his own; besides, the plaintiff has obtained a judgment.

The defendant being a witness, however, the question put to him, whether the bill between himself and McAleer had been previously adjusted, was improperly overruled on plaintiff’s objection. It related substantially to the same matter to which McAleer had been examined, and went directly to establish the amount of his set-off or claim against McAleer, which the evidence had left somewhat doubtful. Had he established this, it would, under the evidence, have been good as a set-off, (not counter claim) against the plaintiffs, who took the check some time after it was drawn, and with knowledge of its dishonor.

We cannot say that had this evidence not been excluded the set-off claimed'would not have been allowed by the referee.

There must be a new trial, costs to abide the event, and the order of reference must be discharged.  