
    The Concord Granite Company, Respondent, against Hamline Q. French, Appellant.
    (Decided June 29th, 1883.)
    After the commencement of an action upon a promissory note by the indorsee against the maker, the amount due upon it was paid to plaintiff, and defendant, by amendment of his answer, alleged that the payment was made by the indorser, and that the indorser and not the plaintiff was the real party in interest. Belli, that such payment constituted no defense to the action, though the indorser might have been entitled to be substituted for the plaintiff.
    Appeal from a judgment of the General Term of the Marine Court of the city of New York, affirming a judgment of that court entered upon the decision of the court upon a trial without a jury.
    The facts are stated in the opinion.
    
      
      L. B. Bunnell, for appellant.
    
      Cephas Brainerd, for respondent.
   Beach, J.

This action was properly brought against the defendant as maker of the note. Thereafter and before answer, the sum due upon it was paid the plaintiff presumably by the payee and indorser, and the defendant, among other minor defenses, alleged in his answer, that such payment was made by the indorser, and the plaintiff, was not the real party in interest. The learned court below was not called upon to decide any other question. It was found that the indorser did not pay until after the commencement of this action.

It seems the contention between the parties only affects the question of costs. If the payment averred in the answer was in fact made bj the defendant it would have been better to have pleaded the truth. The defendant should now be held to his averment.

The'evidence contained in the record shows the truth of the allegation in the answer that the note was paid by the Smith Granite Company, payee and indorser, to the plaintiff as holder, after this action was brought. This fact in no way enured as a defense to the defendant. His liability could only be met in this case from payment by him (Edwards on Bills 535; Story on Promissory Notes § 401; Havens v. Huntington, 1 Cowen 387).

The Smith Granite Company, by the payment, acquired a cause of action against the defendant, and might have asked a substitution as plaintiff here; but the action did not abate, and, under the circumstances, was properly continued by the original plaintiff (Code Civ. Pro. §§ 755, 756). What may result to the defendant, from a correct disposition of the issue he made, is of no importance, especially under the supposition entertained by me from the evidence that his answer was interposed with an intention of gaining a technical advantage, or escaping the payment of costs for which he was properly liable.

In regard to the legal status of the three- parties, I concur in the view so clearly expressed by Judge McAdam in the court below (3 N. Y. Civ. Pro. 56).

The judgment should be affirmed, with costs and disbursements.

Charles P. Daly, Ch. J., concurred.

Judgment affirmed, with costs.  