
    John A. Wood and Wilbur B. Wood, Composing the Firm of John A. Wood & Son, Respondents, v. Mary Ann Rairden, Appellant.
    Second Department,
    March 2, 1906.
    Bills and notes — evidence insufficient to show an indorsement to be without recourse — direction of verdict — effect of failure to claim but one question as proper for jury.
    When a client in settling a dispute with her attorney as to the compensation due him has turned over to him indorsed in blank a promissory note of which she was the payee, - and has also given her own note for the balance, she is liable on her indorsement when such note goes to protest. A claim that it. was agreed that her indorsement was to be without recourse is not substantiated by testimony by the defendant that the attorney gave a receipt “ without any restrictions * * * in consideration of payment, and told me so, .and would give me a receipt in full without any restrictions, and I consider the bill was paid. ”
    On such testimony a verdict for the holder should be directed.
    A statement by a party that he wishes to go to the jury on a specific question, followed by a mere exception to the direction of a verdict, waives the presentation to the jury of any question save the one stated.
    Appeal by the defendant, Mary Ann Rairden, from a judgment of the County Court of Queens county in favor of the plaintiffs, entered in the office of the clerk of the county of Queens on the 26th day of April, 1905, upon the verdict of a jury rendered by direction of the court.
    
      
      Justin S. Galland, for the appellant.
    
      William Willett, Jr., for the respondents.
   Hooker, J.:

This action is by the holder against- an indorser of .a promissory -note. The court directed a verdict in favor of the plaintiffs at the close of the evidence, and the defendant appeals;- Upon the trial the defendant sought to establish that the contract -of indorsement was- made without consideration, and in this she failed. Her pleading, by omitting to deny, admitted the indorsement and delivery to the plaintiffs for value. The' circumstances ■ of the delivery were practically-these; That the plaintiffs’ attorney presented, to her a bill which he claimed she. owed them. She- stated that the amount of the bill was in dispute and slie did not think she should be required to pay it or any of it until the matters in difference between them should be settled, and she even went so far as to claim -that nothing was owing. It was suggested, however, at the interview that the matter, might be adjusted by the indorsement, and delivery to the plaintiffs of -the note in suit, which had been held by her for' some time as payee, and the delivery to the plaintiffs • of her own-note for the difference between the. face of the oíd’note and the amount in question. This she did. The note which bore her indorsement was protested and this action was commenced.

The final paragraph of her answer alleged that the contract of indorsement was Upon the agreement that the defendant was not in any event to be liable for the payment of the note, which would amount to an agreement that the indorsement: should be without recourse. As, written, it appeared, however, to be indorsed in blank. ,The' plaintiffs’ attorney urged that her evidence .was sufficient to -warrant a finding that such was the contract,, but it fell! far short of this. The only evidence she gave which might tend to such a conclusion was : “ I gave him that note, and I gave-him mine,, and he gave me a receipt in full without any restrictions. * * ^ He took it in consideration of payment, and told me so, ánd would. give me á receipt in full without any restrictions, and I consider the bill was paid.” This evidence tends rather to establish the fact that the notes were taken in absolute payment of the bill than that. the. note was indorsed without recourse.

At the close of all the evidence _ the court said, addressing the defendant’s counsel, “ What issue can I present to the jury, Mr. -Galland?” This interrogatory was put in the absence of any motion by either party to direct a verdict, and it was evidently in the court’s mind that a verdict should be directed for the plaintiffs upon the evidence then presented. Mr. Galland then replied: The single question whether or not this $250 note was delivered upon agreement as to payment in full to that extent:— The question for the jury is whether those are the circumstances under which that note was delivered, whether delivered as an absolute payment or a conditional payment.” The court then outlined its views on that question, and directed a .verdict in favor of the plaintiffs. The defendant’s attorney then excepted to the direction of the verdict, but made no requests to go to the jury on any special or any general questions of fact. It is doubtless true that where the court directs a verdict, an ¿xception to the ruling, in the absence of anything from which it might be implied that the right to go to the jury had been waived, is sufficient to present the .question on appeal that there were questions of fact for the jury, and it was unnecessary to request that every fact should be submitted. (Vail v. Reynolds, 118 N. Y. 297.) It is considered in the cases that the mere opposition to a motion to direct a verdict is such an objection to a direction that it cannot be considered that the party so objecting has waived his right to go to the jury, and in our opinion that rule would govern in this case were it not for the statement made by defendant’s counsel, when requested by the court to state what issues there were in .'the case for the jury, that there was a single question in the case, which he then outlined. The defendant, in her answer to the court’s inquiry, definéd what her theory of the case was, and that definition showed that there was but one theory of the case upon which she. claimed to be entitled to a judgment. The language of her attorney was sufficient to distract the court’s attention from any other question save what he had outlined, and was enough to waive the right of presentation of any question of fact to the jury other than the one he named.

This leads to a consideration of the question whether or not the proposition as stated "by the defendant’s attorney presents the question which should have been submitted to the jury. We think not. The only inferefice that may he drawn from the defendant’s evidence was that' the note in suit, together with her own-note, was given and received in absolute payment of the plaintiffs’ pretended claim. She had disputed at least part of it, and by giving, these two note's was settling matters'in difference between herself and the plaintiffs, and this certainly . constituted no defense to an action based upon her indorsement. ' .

. This was-the view of the learned court below. It is correct, and the judgment must be affirmed, with costs. ■

HirsohbErg, P. J., Jenks, Eich and Miller, JJ., concurred.

Judgment of the. County . Court of Queens county affirmed, with costs. - "  