
    STEPHEN W. CARD, Plaintiff, v. JOHN K. MILLER and PARMELIA MILLER, Defendants.
    
      Promissory note— Alterations of— when material—when note avoided by.
    
    The defendant, J. K. Miller, made his promissory note for $500, payable to the order of one Knapp, the note reading, “ I promise to pay,” etc. Subsequently, Knapp, without the knowledge or consent of J. K. Miller, persuaded the defendant, P. Miller, to sign her name to the note, under the name of J. K. Miller. Afterward, and before its maturity, the note came into the hands of the plaintiff, a bona fide purchaser, for a valuable consideration, without notice. In an action brought by him upon the note, held, that he was entitled to recover against both of the defendants. That the addition of P. Miller’s name to the note, was not a material alteration thereof, and did not render it invalid as to the original maker.
    
      Brownell v. Winnie (29 N. Y., 400) and McCaughey v. Smith (27 id., 39), followed; Chappell v. Spencer (28 Barb., 584) and McVean v. Scott (46 id., 379), overruled.
    Motion for a new trial, on exceptions ordered to be heard in the first instance at the General Term.
    On October 31, 1871, the defendant, John K. Miller, made and delivered to one Knapp, his promissory note for $500, payable to the order of the said Knapp, six months after the date thereof. The consideration for such note, was the assignment by the said Knapp, as attorney for one Jenclis, of letters patent for an improved match safe, and an agreement between Knapp and Miller to enter into the manufacture of such safes, as partners. Knapp, however, only wanted the note to satisfy Jencks that the sale had been made, and agreed that the note, or Miller’s half of it, should only be paid out of the profits of the business.
    After the note had thus been- made and delivered by John K. Miller to Knapp, the latter, in three or four days, went to Parmelia Miller, the mother of defendant, John K. Miller, and, without the knowledge or consent of John K., persuaded her to sign her name to the note, under the name of John K., the note being written “I promise to pay,” etc.
    Soon after the note had been so signed, Knapp sold and transferred the note to one Sprague, and, by subsequent sales, the note came into the hands of the plaintiff, for a valuable consideration, before it was due,, and without notice on the part of the plaintiff, of any defects or defenses. The note not being paid when due, this action was brought, and, upon the trial at the circuit, a verdict was ordered by the court for the amount of the note, against both defendants.
    Two exceptions were urged upon this motion for a new trial, which were ordered to be heard in the first instance at the General Term.
    1st. That there was no such evidence of Knapp’s indorsement of the note as to warrant a recovery.
    2d. That the addition of Mrs. Miller’s name, after the negotiation and delivery of the note to Knapp, without the knowledge or consent of John K., was a material alteration of the note and avoided it.
    
      M. M. Waters, for the plaintiff,
    cited Brownell v. Winnie (29 N. Y., 400; 2 Am. Rep., 598); Flint v. Craig (59 Barb., 319); Cromwell v. Hewitt (40 N. Y., 491).
    
      0. Porter, for the plaintiff,
    cited Lewis v. Payne (8 Cow., 71) ; Nunny v. Colton (1 Hawks., 222); Jewitt v. Hodgden (3 Green., 103); Irving v. Turnpike (2 Penn., 466).
   Boaedman, J.:

The evidence of Knapp’s indorsement was sufficient to establish the fact. In any event, it could only have been error to have refused to submit that question to the jury, upon the request by the defendant. Ho such request was specially made by the defendant. The testimony of St. John was competent, and tended to establish Knapp’s indorsement. It was also proved by the defendant, that Sprague bought the note of Knapp. All the evidence in the case went to establish the genuineness of the indorsement, and no evidence was given, showing, or tending to show, that it was not genuine. ■ Hnder such circumstances, the court was justified in treating the proof as sufficient. But if not, the neglect of the defendant to request the submission of that specific question to the jury, was a waiver of the objection.

A more serious question arises upon the alteration of the note, by adding the name of Mrs. Miller, after its delivery to Knapp, without the knowledge of her son. The authorities are in conflict upon, this subject. In Chappell v. Spencer, and in McVean v. Scott, such an alteration is held to be material, and to avoid the note, as to the original maker. But, in Brownell v. Winnie, and McCaughey v Smith, such an alteration has been held by the Court of Appeals, not to be material, or to affect the validity of the note. It is true that the original maker of the note did not defend, in Brownell v. Winnie, and that the person, making the alteration, alone defended, so that the precise question was not before the court. The case of McCaughey v. Smith, has been severely criticised in McVean v. Scott, and declared to be bad law. Still, in the face of two such distinct declarations of the law of this case by the Court of Appeals, I do not feel at liberty to say the alteration under consideration was material. This note was a several note, and it may well be said, the liability of John K. is not increased or varied by the addition of his mother’s name as an additional maker, any more than it would have been, if she had guaranteed the payment of the note. Had the form of the signature, as set up in the complaint, to wit: “ John K. Miller and Parmelia Miller,” been established upon the trial, a different •question might have been raised; because, such a signature would import, in law, a joint, and not a several liability. But the case shows only the several signatures of the two defendants, by which a several, and not a joint liability is created. Without attempting to review the authorities, I feel bound to recognize and follow the cases cited in the Court of Appeals.

The motion for a new trial is therefore denied, and judgment ordered for the plaintiff upon the verdict, with costs.

Present—Miller, P. J., Boardmajst and James,- JJ.

Jamjbs, J., dissented as to the sufficiency of the evidence to establish the indorsement of -the note by Knapp, but concurred with Boabdmajst, J., as to the effect of the alteration of the note. .

Judgment ordered for the plaintiff, with costs. 
      
       Bidwell v. Lament, 17 How., 357.
     
      
       23 Barb., 584.
     
      
       46 Barb., 379.
     
      
       29 N. Y., 400.
     
      
       27 N. Y., 39.
     
      
       46 Barb., 387.
     