
    Solomon Waterman, Appellant, v. Edmund L. Waterman and Thomas L. Peniston, Respondents.
    (Supreme Court, Appellate Term,
    December, 1903.)
    Promissory note — When the defense of infancy is a jury question — Failure of consideration—Ratification. x
    Where the maker interposes no defense to an action, by the payee, on his promissory note except his infancy at the time he made it and is the only witness on that point, the question of his infancy must be submitted to the jury.
    He is a party in interest and his physical appearance is of importance in determining the credibility of his testimony as to his infancy.
    Where such note is endorsed by a third party for the aceommodation of the maker thereof to enable him to purchase a business,
    formerly conducted by him and his mother as copartners, which, without his consent, she had sold to the payee of the note, the transfer thus acquired from the mother of her interest in such business (as it might ultimately be determined on an accounting between the partners) is a sufficient consideration to sustain the obligation of the accommodation endorser of the note.
    Where the maker purchases the business from the payee he recognizes the payee as owner of it and ratifies the sale of it made by his mother to the payee.
    Appeal from a judgment of the Oity Court of the city of New York, rendered against the plaintiff, and in favor of the defendants severally, and from an order denying the plaintiff’s motion for a new trial. .......~
    
      Action against the maker and indorser of a promissory-note, the defense interposed by the former being infancy, and by the latter failure of consideration.
    Wm. J. Barker, for appellant.
    Leopold Prince, for respondent Waterman. •
    Herman B. Goodstein, for respondent Peniston.
   Bisohoef, J.

Clearly the judgments and order appealed from should be reversed.

The maker’s single defense was that when the note was given he was under the age of twenty-one years, and upon his uncorroborated testimony to the fact of his nonage the trial court dismissed the complaint as to him. This was error since the question of infancy should have been submitted to the jury.-

Ii we assume that it was competent for the maker of the note to testify to his nonage; for which there is authority (Commonwealth v. Phillips, 162 Mass. 504; Houlton v. Manteuffel, 51 Minn. 185; Cheever v. Congdon, 34 Mich. 296), it remained that any knowledge of the witness upon the subject was necessarily from hearsay, that the witness was a party in interest, and that his physical appearance was of importance in determining whether or not his testimony was deserving of credit. Commonwealth v. Phillips, supra. If his apparent maturity rendered the fact of his nonage, when giving the note, improbable, the jury would have been authorized to reject his testimony and in that event the defense of infancy would have been wholly without support. The defendant indorser’s defense of a failure of consideration for the note was based upon the claim that his indorsement was given for the single purpose of enabling the maker by purchase to acquire possession from the plaintiff of a particular business in which it was admitted he succeeded; that this business was at one time owned by. the maker and his mother, as copartners; that the plaintiff acquired it by purchase from the mother, but that his title thereto failed because the sale to him was made without the maker’s consent; and that for the reasons stated the maker did not secure title by purchase from the plaintiff. The facts fell short of showing a failure of consideration, and the plaintiff’s motion for the direction of a verdict in his favor should have been granted.

Assuming the sale by the mother to have been ineffectual as a sale of the business and transfer of the interests of the several partners therein, the plaintiff nevertheless succeeded to such interest as she would have had upon a dissolution of the firm and an accounting for the copartnership assets and since the maker by his purchase from the plaintiff succeeded at least to that interest for this note.

Again, though it might have been competent to the maker to dispute the validity of the sale by his mother to the plaintiff, because made without his previous consent, it was also competent for him to ratify it thereafter, and this he effectually did when by his purchase from the plaintiff he recognized the latter as the owner of the business.

We may add that the maker, having with full knowledge of the facts, induced the plaintiff,' upon the faith of the note, to sell and part with the possession of the business to him, was thereafter estopped from disputing the plaintiff’s right to sell, and with it, therefore, the receipt of consideration. Costar v. Brush, 25 Wend. 628. It is unnecessary, however, to inquire how far this estoppel operated to prevent the indorser from asserting the failure of consideration. The indorsement was given for the maker’s accommodation, given to him for the very purpose of securing the business from the plaintiff, and when he ratified bis mother’s sale to the plaintiff, he received all the consideration he and the indorser intended.

The several judgments, as well as the order appealed from, are reversed, and a new trial ordered, with costs to the appellant, to abide the event.

Fbeedmah", P. J., and Blaitchard, J., concur.

Judgments and order reversed and new trial ordered, with costs to appellant to abide event.  