
    John J. Banagan, Respondent, v. Nathan E. Clark, Appellant.
    (Supreme Court, Appellate Term,
    March, 1902.)
    Evidence — Effect of plaintiff’s failure to call a material available witness.
    Where the maker of a promissory note defends an action brought upon it by an indorsee, after maturity, for the collection of it for the benefit of the second indorser, upon the ground that the payee and first indorser took the note as accommodation paper and upon condition that the second indorser would perform a certain contract which it had made with the maker of the note and that the first indorser, which attempted to perform the contract but only as agent of the second indorser, had failed to make substantial performance, the failure of the plaintiff to call as a witness upon the trial a person who was officially connected with both indorsers, who was the main figure in the transactions out of which the suit arose and who might have been produced, entitles the defendant to have the court charge that such failure may be considered by the jury as evidence of the fact that had the- person in question been called his testimony would have been adverse to the plaintiff.
    Appeal by the defendant from an affirmance by the General Term of the City Court of the city of New York of a judgment, entered upon a verdict in the latter court, in favor of the plaintiff. The nature of the action and the facts so far as material are stated in the opinion.
    Eranklin Bien, for appellant.
    Seymour, Seymour & Harmon (Frederick Seymour, of counsel), for respondent.
   Giegerich, J.

This is an action upon a promissory note made by the defendant to the order of The Armstrong & Bolton Company, indorsed by the latter to the Foskett-Bishop Company, and received by the plaintiff after maturity as an indorsee for collection.

The issues at the trial were confined' to the questions raised by an affirmative defense, whereby it was contended that the Armstrong & Bolton Company, the payee, had taken the note as accommodation paper with a condition that a certain contract for steam fitting, made "by the Foskett-Bishop Company with the defendant, should be performed, and that there had been no substantial performance.

It appears that the work under this contract was undertaken by the Armstrong & Bolton Company, but the position of the defendant is that he never accepted this company as a substitute for the Foskett-Bishop Company in the performance of the contract, and that he dealt with the former upon the understanding that it was merely the agent of the latter. If this agency existed as a fact, then knowledge of the condition under which the note was given was imputed to the Foskett-Bishop Company, and nonperformance of the condition was thus available as a defense to the note in the hands' of the plaintiff, who took the paper subject to the equities.

Apart from the issue as to the special agreement and as to performance of the contract for the steam fitting, the plaintiff’s case, as against this defense, proceeded upon the contention that the Armstrong & Bolton Company was wholly independent of the Foskett-Bishop Company, and had been accepted by the defendant as the substitute for the latter company under the contract, it being claimed, generally, that the Foskett-Bishop Company received the note in suit as a bona fide holder, and that any agreement between the defendant and the payee was, accordingly, unavailing as a defense.

Many exceptions were taken by the appellant to rulings upon evidence, but, as far as our attention has been called to these rulings by argument of the points, or by some statement of the grounds upon which error is asserted, we find no reason for reversing the judgment.

We think, however, that for the court’s refusal to charge certain matters requested by the defendant, under exception, a new trial should be bad.

The defendant’s testimony was that the agreement, under which the note in suit was delivered, was made with Mr. Armstrong — an officer of the Armstrong & Bolton Company, as well as a director of the Foskett-Bishop Company — and it is obvious that this individual was identified in interest with the plaintiff and friendly to the suit. Upon the question of the special agreement touching tho note, which the defendant alleged, Mr. Armstrong must needs have been a witness hostile to the defendant, as far as the matter of interest went, and, if he was to be a witness at all, it was but natural to assume that he would be called not by the defendant, but by the plaintiff.

It appeared that the plaintiff had made no effort, and assumedly had no desire to procure the attendance of Mr. Armstrong at the trial, and no explanation of the failure to call him as a witness was given.

By requests to charge, not objectionable in form, the defendant sought to have the jury instructed that the plaintiff’s failure to call this witness may be considered as evidence of the fact that his testimony would have been adverse to that party.”

The court refused thus to charge, but did charge that there was no evidence showing any inability of the plaintiff to procure the attendance or testimony of Mr. Armstrong.

The last proposition eliminated any question of excuse for not producing this witness and, as a matter of fact, no excuse was suggested.

Within the authority of Carpenter v. Pennsylvania R. R. Co., 13 App. Div. 328, the jury should have been instructed as requested. The conclusion reached by the court in that case made the relative availability of the witness to either party, by resort to a subpeena, no test upon this question of the presumption which might be indulged in for the failure to call a friendly witness whose testimony would necessarily have been material.

In the case cited the right to have the jury thus instructed was made to depend upon the relationship existing between the adverse party and the absent witness, and the resulting probability that the witness, if able to give favorable testimony, would have been called. Here, the absent witness was the main figure in the transactions which resulted in the suit, and it was for the benefit of a corporation of which he was a director that the collection of the note, in this action, was to be made. In commercial dealings, it is difficult, to assume the existence of a situation where the friendship of the absent witness would follow as an inference to a greater extent than upon the facts presented here. See also Milliman v. Rochester R. Co., 3 App. Div. 109.

In view of the fact that the defendant’s testimony of the making of the special agreement was uncorroborated the value of the instruction sought is obvious, and the ruling was clearly prejudicial.

The judgment should be reversed, and a new trial ordered, with costs to the appellant to abide the event.

Ebeedman, P. J., and Greenbatjm, J., concur.

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