
    BLOCH v. LIPPMAN.
    (Supreme Court, Appellate Term.
    February 7, 1908.)
    1. Guaranty—Construction—Conditions.
    Where the defendant guaranteed payment of a note on condition that another note on which he was an Indorser should be paid by the maker without protest, and the first note was protested and paid by him, he will be relieved from his guaranty on the second note.
    2. Same—Action—Sufficiency of Evidence—Transfer.
    In an action on defendant’s guaranty of a note, evidence held insufficient to show an assignment of the note and guaranty to plaintiff.
    Appeal from Municipal Court, Borough of Manhattan, Fourth District.
    Action by Charles S. Bloch against Israel Rippman. From a judgment for plaintiff, defendant appeals. Reversed, and new trial ordered.
    Argued before GIRDERSREEVE, P. J., and SEABURY and GERARD, JJ.
    
      Harry A. Gordon, for appellant.
    Jacob Newman, for respondent.
   PER CURIAM.

The judgment in this case is not warranted by the testimony. The pleadings were oral, and the complaint is as follows: "Action on a written guarantee of promissory note.” The whole testimony is uncertain and indefinite; but from what may be gleaned from the evidence it may be said that the defendant guaranteed the payment of a note upon condition that another note upon which he was indorser should be paid by the maker without protest. The first note seems to have been protested and paid by the defendant, thus relieving him from his guaranty on the second note. This action was brought by the plaintiff, who it is claimed is the assignee of the holder of the second note and of the guaranty; but there is no positive evidence that any assignment of the note and guaranty was ever made to plaintiff. Although the note itself bears the indorsement of the defendant’s name, he claims that such indorsement is a forgery, and no evidence is given to rebut such testimony. A new trial may render the issues clearer by more definite and certain testimony.

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