
    (72 Hun, 166.)
    EDISON GENERAL ELECTRIC CO. v. ZEBLEY et al.
    (Supreme Court, General Term, First Department.
    October 13, 1893.)
    Promissory Note—Action against Indorser—Pleading.
    A. complaint alleging merely that a third person made and delivered to plaintiff for value a certain promissory note in writing, which was duly indorsed by defendant for value before said delivery, and setting out the note, is bad on demurrer as not stating facts sufficient to overcome the presumption that an indorsement on a note made before that of the payee is a second indorsement, on which the payee cannot sue.
    Appeal from special term, New York county.
    Action by the Edison General Electric Company against John F. Zebley, impleaded with the Eastern Electric Company, on a promissory note. From an interlocutory judgment sustaining a demurrer to the complaint, plaintiff appeals.
    Affirmed.
    Argued before O’BRIEN, P. J., and FOLLETT and PARKER, JJ.
    Eaton & Lewis, (W. Laird Goldsborough, of counsel,) for appellant.
    Redfield &• Redfield, (Amasa A. Redfield, of counsel,) for respondents.
   PER CURIAM.

The indorser Zebley demurred to the complaint on the ground that it did not state a cause of action as against him. After certain formal averments, the complaint alleges (paragraph 4) as follows:

“That heretofore, and on or about the 8th day of February, 1892, at the city and county and state of New York, the Eastern Electric Company made and delivered to the plaintiff for value a certain promissory note in writing, which said note was duly indorsed by the defendant John F. Zebley for value before said delivery, in words and figures following, to wit,”

—And then follows a copy of the note.

The question on this appeal is whether or not such an allegation is sufficient to charge the respondent Zebley as an original party to the several notes in suit, or as privy to the consideration for which they were given by the maker to the payee. Undoubtedly, the rule is well settled, as stated in Coulter v. Richmond, 59 N. Y. 478, that—

"“In this state it has been repeatedly held, and is too strongly settled by authority to be disturbed, that a person making such an indorsement is presumed to have intended to become liable as second indorser, and that on the face of the paper, without explanation, he is to be regarded as second indorser, and of course not liable upon the note to the payee, who is supposed to be first indorser.”

Are the facts stated in the complaint sufficient to destroy the legal presumption that the indorser wrote his name for the accommodation of the maker, intending to become indorser subsequent to the payee? We think not, and concur with the court below in sustaining the demurrer. Great reliance has been placed upon the case of Lynch v. Levy, 11 Hun, 145, which, it is claimed, is on all fours with the case at bar, as establishing a new rule for determining the sufficiency of the complaint in an action of this character against an indorser. An examination, howevelr, of that case, Will show that the court had in mind the rule of law and the legal presumption which has been stated, but held that the allegations in that complaint stated a sufficient cause of action; and the learned judge writing the opinion recognizes the settled rule of law in this state, and correctly says:

“There can be no doubt that if, in such a case as this, there are allegations ' showing that the indorsement was made to give the maker credit with the payee, the action can be maintained.”

This is but another way of stating that the legal presumption that an indorsement upon a promissory note, made before that of the payee, is a second indorsement, may be overcome by proper allegations showing that the person so indorsing the note intended to charge himself either as joint maker, guarantor, or surety. There being an absence of such allegation's in the complaint in this case, the demurrer was properly sustained by the court below, and the judgment should be affirmed, with costs.  