
    Gates et al. v. Williams.
    (City Court of New York
    General Term,
    April, 1893.)
    F. & Co. made a note, payable to order of plaintiffs, which was indorsed by defendant before delivery to plaintiffs, for the purpose of paying for building material furnished to her. Held, that on the face of the paper defendant was a second indorser and not liable thereon to plaintiffs, the payees.
    Evidence that defendant indorsed the note to give the payees credit with the bank, does not overcome the legal presumption that she was simply a second indorser.
    Appeal by defendant from judgment entered on verdict directed against her.
    
      G. W. Stephens, for plaintiffs (respondents).
    
      Jas. A. Deering, for defendant (appellant).
   Yai^ Wyok, J.

Messrs. Gates & Co., the plaintiffs, sue Mrs. Williams, the defendant, upon a note made by Fritz & Hafner to the order of Gates & Co., and indorsed by her before delivery to them, and their complaint recognises that from the instrument itself the presumption of law is, that she intended to become liable simply as a second indorser (Coulter v. Richmond, 59 N. Y. 481), for it is further alleged therein that this note was made and indorsed and delivered to them as so indorsed for the purpose of paying for building materials furnished ■ by them to her. Except for this latter allegation the complaint would have been demurrable; hence the plaintiffs’ cause was maintainable only upon proof thereof. And upon this theory the case was tried, but they failed to prove by legal evidence that they had furnished the materials to her or upon her credit, for their only proof upon this question was that of their Mr. Barnard, who testified: “ I told him (her husband) I was willing to supply the lumber if we could charge it to Mrs. Williams * * * and he said she agreed to it; ” and continuing, he testified: “ I can’t swear to anything about his wife any more than what he told me.” This evidence was taken against defendant’s objection, and allowed upon the statement of plaintiffs’' atttorney, “We will show that she ratified it.” However, the proof does not show that she ratified it, nor does it show any authority by her husband to act for her. At the close of plaintiffs’ case the defendant was entitled to a nonsuit, and her motion to dismiss, then made, should have been granted instead of denied. The defendant’s proof in no way closes these gaps in plaintiffs’ proof as to ratification by her and authority by her husband, for they both testify that he had no such authority and that she had never agreed to have the lumber charged to her. The defendant’s motion to dismiss on the merits at the close of the case should have been granted. The plaintiffs insist, however, that although their complaint did not allege that Mrs. Williams indorsed the note under an agreement to give the • makers credit with the payees, these plaintiffs, still that the proof show's that she indorsed it under such an agreement. But such is not the proof, for Mr. Robinson, plaintiffs’ collector, who conducted the negotiations as to this indorsement, testifies: “ I don’t know what "was said to Mrs. Williams when she signed this note; I represented to her husband that we wanted to get money on the note at a bank; I wanted to get it in the right-shape, so it could be negotiated.” And Mr. Fritz, who really induced Mrs. Williams to indorse the note, testifies: “ I can repeat my exact words in asking Mrs. Williams to. indorse this note ; I told Mrs. Williams that Gates & Co. wanted to raise money on the note, and they couldn’t do it with my name, and I asked her if she wouldn’t be kind enough to indorse that note so they can have it discounted, and she did so.” It is in proof that the note was discounted by a bank for plaintiffs (the payees) and protested for nonpayment, and subsequently taken up and now held by plaintiffs. This proof does not show that Mrs. Williams indorsed the note for the purpose of giving the makers credit with the payees, but rather that she indorsed it to give the payees credit with the bank of discount, and certainly does not overcome the well-settled presumption of law that a person making such an indorsement intended to become liable only as a second indorser, and that on the face of the paper, without explanation, she is to be regarded as second indorser, and, of course, not liable upon the note to the payee, who is supposed to be the first indorser.

Judgment reversed and new trial granted,, will costs to appellant to abide the event.

McGown and Fitzsimons, JJ., concur.

Judgment reversed, new trial ordered.  