
    LUCIAN R. BAILEY, Appellant, v. JOHN H. BERGEN, as Executor of the last Will and Testament of MARIA F. BERGEN, Deceased, Respondent.
    This action was brought to recover the sum of $815.88, alleged to be due upon a promissory note made by W. H. Cross for $1,000, and indorsed by Maria F. Bergen, an accommodation indorser, and delivered to plaintiff in part payment for goods sold. W. H. Cross made a general assignment to flamtiff for the benefit of his creditors, preferring, among other claims, the note in question and two other notes indorsed by Maria F. Bergen, which fell due prior to the one in suit, and were paid in full by the plaintiff, as assignee, to himself as holder, and were surrendered and canceled by him. The balance of the funds held by the plaintiff, as assignee, was insufficient to meet the note sued upon, and the amount unpaid on this note was sought to be recovered in this action. The defendant in his answer claimed that the amount held by the plain tiffj as assignee, should have been paid proportionately on each of the three notes, and the referee found that the sum of $194.50 and protest fees were due plaintiff, who appealed to the General Term, where it was held that as the same parties were liable upon each of the three notes, the assignee was justified in paying them in full as they became due, so far as the funds in his hands would allow, and directed that a new trial be had, costs to abide the event.
    
      George Bowen, for the appellant.
    
      Franklin D. Locke, for the respondent.
   Opinion by E. D. Smith, P. J.

Present—E. D. Smith, P. J., Gilbert and Talcott, JJ.

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