
    The Twelfth Ward Bank, Respondent, v. James Rogers, Appellant.
    (City Court of New York, General Term,
    November, 1899.)
    Bills and notes — Valid agreement that an indorser shall incur no liability by indorsing.
    Where the president of a bank, holding a protested note which had been indorsed for accommodation and discounted, promises the indorser that, if he will indorse a renewal note, upon the same terms, the bank will not hold him liable upon it, the indorser has, as against the bank, a right to prove the agreement; and, if he established it, is discharged from ail liability on the- note»
    Appeal by the defendant from a judgment, entered upon a verdict directed by the court, and from an order denying a motion for a new trial.
    Earley & Prendergast (Henry G. K. Heath, of counsel), for appellant.
    Dayton & Swift, for respondent.
   Coman, J.

This action was brought to recover against the defendant, James Rogers, and one Collin H. Woodward, upon a certain promissory note made by the defendant Woodward to the order of the defendant Rogers, and thereafter indorsed by Rogers and delivered to the plaintiff. Rogers, after denying the indorsement and delivery of the note for value, alleged that the same was not delivered to the plaintiff for value, and that he did not receive any value from the plaintiff or from anyone else for indorsing said note, and that the same was indorsed solely for the accommodation and the request of the plaintiff; that the note in suit was a renewal of a note heretofore given at the request of the plaintiff to take the place of a note executed for no consideration, and at the special' request of the plaintiff, under an agreement that the defendant should not be held liable thereon. The defendant Rogers alone answers.

It appeared that, prior to October, 1895, the defendant Rogers, with one Campbell and one Abram Steers, had been jointly interested in a building transaction; the buildings were owned by the defendant Woodward, and $5,000 was required to complete them. It was agreed that Woodward should issue his notes for the $5,000; three notes, each for one-third thereof; the notes were to be discounted and each of three parties, Rogers, Campbell and Steers, did not pay; the Steers note was renewed several times until Rogers objected to carrying the note any longer and then, it is claimed, that by an agreement made between Steers, the person who had not paid, Rogers, the defendant, and Edward P. Steers, the president of the plaintiff (and who was the brother of Abram Steers), which held the protested note, it was agreed that if Rogers would indorse a new note to the bank he should be held harmless thereon by the bank; upon this understanding and agreement alone, as it is claimed, the note in suit was made and delivered. Upon the trial defendant asked leave to go to the jury upon the question as to whether or not such an agreement, as is here alleged, was made with reference to the last renewal, claiming that it was the province of the jury to determine the same, but the court refused the request and the defendant excepted.

It was held in Garfield National Bank v. Colwell, 57 Hun. 169, that the agreement testified to by the defendant, if madei, was a defense to the note. The question, therefore, whether or not it was made, was one for the jury to determine, and this authority was cited with approval in the case of Higgins v. Ridgway, 90 Hun, 400, where the court said: “ There is no distinction in principle between the case cited and the one at bar.” This note was never delivered by the defendant, nor received by the bank for the purpose of charging the defendant with liability thereupon; and it was entirely competent to show that the defendant received no benefit therefrom; the authorities cited by the counsel for the respondent are not to the precise point made in behalf of the appellant. The question was, and indeed it is the only question which we need discuss or consider here — had the defendant a right to go to the jury, on the evidence adduced, as to whether or not the agreement for the making and delivery of the note was as claimed by the plaintiff? The court below could not determine it, and the direction for a verdict was such a disregard of the clear rights of the defendant in the premises as to call for the interference of this court upon appeal. Having reached the conclusion, therefore, that there must he reversal of the judgment and order appealed from, we do not review any of the other questions presented by the record.

Judgment and order appealed from reversed and a new trial granted, with costs to the appellant to abide the event.

Eitzsimons, Oh. J., and McCarthy, J., concur.

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