
    Richard H. Casey, Appellant, v. Walter H. Stewart et al., Impleaded, Respondents.
    (New York Common Pleas — General Term,
    June, 1895.)
    • A contract for work to "be performed for a club provided for payment in part by its notes indorsed by its governing board. The notes given were made by another club which subsequently occupied the premises. These notes were made payable to the contractor and were indorsed by the trustees of the club. In an action upon one of said notes brought by the payee against the club and indorsers, held, that these facts presented a question for the jury as to whether the indorsements were made for the purpose of giving the club credit with the payee.
    
      Casey v. Stewart, 10 Misc. Rep. 783, reversed.
    Appeal by the plaintiff from a judgment of the General Term of the City Court of New York, affirming a judgment entered on the direction of the trial justice dismissing the complaint as against the defendants Stewart and Payne.
    The nature of the action and the facts, so far as they are material, are stated in the opinion.
    
      Frederick li. Goudert, for appellant.
    
      James Flynn, for respondents.
   Giegerich, J.

This action was brought against the Cosmopolitan Club, Walter H. Stewart, Frederick G. Payne and •others, upon the following promissory note:

“$500.00. Hew York, May 1st, 1893.

“ Eight months after date we promise to pay to the order of R. H. Casey five hundred dollars at Ho. 16 Wt. 30th st. Value received. With interest.

“ The Cosmopolitan- Club, C. T. Lunt, PtP

Indorsements:

' “ C. T. Lunt,

“ Auguste Hoel, Jr.,

“ Russell H. Henderson,

“ W. H. Stewart,

“ E. B. Alvord,

“ Pierce Hoel,

“ I. T. Turrison,

“ G. H. Bussensohutt,

“ S. B. Battey,

“ Frederick Gillies Payne,

Trustees of the Cosmopolitan Chib.

“ R. H. Casey. ”

The complaint was dismissed when the plaintiff rested upon the trial, and exception was duly taken.

The theory of the dismissal was that the note upon its face imported that the plaintiff, as payee, was presumptively to become the first indorser, and that the defendants were to be subsequent indorsers (Bornstein v. Kauffman, 4 Misc. Rep. 83, and citations), and that such presumption must be rebutted by proof that the indorsement was made to give the maker credit with the payee (Bornstein v. Kauffman, supra), and that such proof was wanting.

We cannot concur in this view of the significance of the evidence. The facts material to the point in hand are as follows : The plaintiff Casey made a contract with a certain club called the Renwick to make certain alterations and improvements in a building which that club was to occupy. The last clause of the contract is as follows: “ It is agreed that the terms on the within contract shall be five hundred dollars cash during the progress of work, and the balance in three notes of five hundred dollars each of four, eight and twelve months respectively, bearing interest at the rate of per annum and bearing the indorsements of the governing board of the club.”

This contract was first sent to “ Charles T. Lunt, Esq., president, and others composing the board of governors of the Ren wick Club, 40 W. 22nd street, city,” in the form of a bid for the proposed work, and the last clause of the contract, quoted above, presumably intended notes made by the Renwiclc Club and indorsed by its governing board. Instead of such notes, however, the plaintiff accepted notes, one of which is sued upon, made by the Cosmopolitan Club and indorsed by its trustees. The reason for the substitution appears to be the fact that the Cosmopolitan Club subsequently occupied the same premises as a club house, and was evidently more or less closely related to its predecessor in possession, as several of the governing board of trustees, including the defendants Stewart and Payne, were the same in both, and the defendant Lunt was president of both.

Lunt testified that the explanation in regard to the terms of this contract was made at a time previous to the meeting at which the note was indorsed. * * * The matter was discussed in the governing board over and over again, and then two people were present (meaning the defendants Stewart and Payne), and the whole board was present.”

We are convinced that there was enough evidence to require a submission to the jury of the questions whether the indorsements were made for the purpose of giving the Cosmopolitan Club credit with the plaintiff Casey. The evidence in this case is similar in many respects to that in Gates v. Williams, 9 Misc. Rep.. 176; 60 N. Y. St. Repr. 636 ; 29 N. Y. Supp. 712, in which we held that the indorsement was, in legal effect, a promise to pay the amount of the note if the makers failed to pay the same at maturity. The dismissal of the complaint was error.

For these reasons the judgment should be reversed and a new trial ordered, with costs to abide the event.

Bookstaver and Bisci-ioff, JJ., concur.

Judgment reversed and new trial ordered, with costs t© abide event.  