
    Eliphalet L. Davis, Respondent, v. Ella V. A. Dayton et al., Appellants.
    (New York Common Pleas—General Term,
    March, 1894.)
    The transferee of a check who pays the whole face thereof is a dona fide holder, although he is told to hold it, and is entitled to enforce it against the accommodation maker and indorser thereof.
    PlaintifE’s knowledge of the circumstances under which the check was given cannot be proved by testimony as to what his transferor knew, said or heard.
    Appeal by defendants from an affirmance by the City Court of a judgment in favor of plaintiff, entered upon the verdict of a jury.
    
      
      Alfred P. W. Sea/man, for appellants.
    
      Foley da Powell {Henry A. Powell, of counsel), for respondents.
   Per Curiam.

The action was upon a check made by Ella Y. A. Dayton and indorsed by Abram II. Dayton. Both defendants put in issue the allegations of the complaint, and the answer of Mr. Dayton sets up that the check was signed in blank by Mrs. Dayton and delivered to him to be used as he might require when there was any balance in bank to draw against; and that he delivered the check to one Ward (who had previously asked him for a note or check for his, Ward’s, accommodation), and that Yrard received the check on the agreement that it should not be presented for payment, or ■deposited, and was informed that there were no funds in bank to meet it; and that if it was transferred to plaintiff, it was after it was due and payable, and without consideration, and with knowledge on plaintiff’s part that it was made without consideration and for the accommodation of Ward. On the trial the plaintiff proved that he received the check two days after it was made, and that he paid Ward the whole face of the check, and was told by the latter to hold it. It was presented afterwards at the bank for payment and payment was refused. Plaintiff was a bona fide holder of the check and entitled to enforce it against the maker, who had made it for the accommodation of the indorser, and against the latter, who indorsed it and transferred it to Ward for the accommodation of the latter. It had legal inception when plaintiff purchased it from Ward for full value. Ho defense of diversion was pleaded, and the court properly excluded offer of proof thereof either by Dayton or Ward, although, when plaintiff waived objection to such proof, defendants did not offer any. The exceptions are unavailing. There was a motion to dismiss the complaint (made apparently before plaintiff rested) on the ground that there was no proper demand and notice to charge the indorser, but after the plaintiff rested the motion was not renewed and no further objection was made on that ground. Excejjtion was taken to the exclusion of a conversation between Ward and a witness called for defendant. The object of it was not stated, except that it was to be connected so as to prove knowledge of the plaintiff. Plaintiff’s knowledge could not be proved by giving testimony as to what Ward knew, said or heard.'

The judgment should be affirmed, with costs.

Present: Daly, Ch. J., Bischoff and Pbyor, JJ.

Judgment affirmed, with costs.  