
    
      John S. Eldridge, Respondent, v. Sabina E. Husted, Appellant.
    (City Court of New York, General Term,
    February, 1898.)
    Principal and agent — Power of attorney to make notes.
    Where a principal gives her agent a broad power of attorney to give negotiable paper in her name, she is liable upon a note which the attorney' made in her name to himself as payee, and -which he, so far as appeared, not for his own benefit, subsequently indorsed and delivered to the holder in consideration of his delivery of securities to the agent, 'upon which the latter received money.
    
      Appeal from a judgment, entered upon a verdict of the jury in favor of the plaintiff.
    Henry L. Brant (Howard Y. Stillman, of counsel), for appellant.
    Charles E. Hill, for respondent.
   O’Dwyer, J.

The action was brought to recover upon two-promissory notes made by the defendant, signed with her name- and Peter Y. Husted, her attorney in fact.

The complaint was an ordinary one upon promissory notes and alleges the notes, that Peter Y. Husted was the attorney in fact of the defendant and authorized to make and deliver notes for the defendant; the making and delivery before and nonpayment at maturity.

The answer admits the power of attorney, the making and delivery and nonpayment, but alleges that it only authorized her; attorney to make, notes in her own business affairs and not in any manner to bind or charge 'the defendant for the personal debts or liabilities of said Peter Y. Husted, and further, that the indebtedness, for which the notes were given, wás that of Peter Y. Husted and that no consideration was given to the defendant for such notes.

The complaint was sufficient to entitle plaintiff to judgment by default had no answer been interposed, and the motion made to dismiss the complaint, at the opening of the trial, on the ground' that it did not state facts sufficient to constitute a cause of action, was properly denied.

On the trial, the plaintiff claimed that the consideration for the-notes in question was the giving to Peter Y. Husted, the only witness who appeared for the defendant, of certain securities-which the ulairiti-ff had, in consideration of the notes in question, on which securities Peter Y. Husted received money; that these-securities were given at the same time that the notes were given,, and in consideration of such transfer of the securities.

The defendant contended that the notes were given in consideration of a past indebtedness and that there was no consideration given-at the time that the notes were delivered to the plaintiff.

Upon this conflict the jury have found in favor of the plaintiff, and an examination of this record does not show that that verdict is-against the weight of evidence or the preponderance of evidence. On. the contrary we are satisfied that the verdict is fully justified by a fair preponderance of evidence.

At the conclusion of the trial the defendant requested the court to charge “ that a trustee or agent should not act for his own benefit in any matter relating to his agency or trust; ” and to a denial 'so to charge duly excepted.

There was nothing in the evidence, on either side, which would justify the claim that the note was made for the benefit of the . agent. The case of Claflin v. Bank, 25 N. Y. 293, relied upon by ■ the defendant, does not apply.

That case lays down the proposition only that the president of a bank is not entitled to certify his own check upon the bank and ■ that a person taking such check runs the risk of the check not • being good.

-It nowhere holds that an agent with a broad power of attorney may not use his principal’s name upon negotiable paper so as.to •• bind the principal.

„• The fact that the note was made payable to himself and in- ■ dorsed by himself does not invalidate the note; it simply gave the plaintiff the additional security of Peter Y, Husted as indorser. Goshen Bank v. State, 141 N. Y. 379.

It was not error to exclude evidence of payment on account of ■ the notes. ■ There was no plea of payment, but on the other hand, the defendant in her answer denies making any payment on account of the notes,

The other exceptions require no discussion. The case was fairly tried and the judgment appealed from should be affirmed, with 'costs.

McCarthy and Scotchman, JJ., concur.

Judgment affirmed, with costs..  