
    William E. Wamsley, Respondent, v. Thomas A. Darragh, Appellant.
    (New York Common Pleas
    General Term,
    December, 1895.)
    A-power of attorney authorizing two .persons, jointly and singly, “to indorse, either for collection or otherwise, any check, draft, bill of exchange or promissory note drawn to ¡bearer or to the order of the ' principal, or indorsed payable, to the principal or his order," is sufficient to authorize one of such persons to indorse and transfer a note payable to the order of such principal.
    A demand of payment of a promissory ^note is not a' condition, precedent to a right of recovery against the maker. ' . .
    One who is non compos mentis is incapable in law of appointing an agent, and such appointment is void and: not voidable merely.
    In an action on a promissory note which had been indorsed and transferred by an alleged attorney of the payee, where the defense was that the power of attorney was invalid, as the payee was insane at the time of its execution, an offer in evidence of the’petition and affidavits and record 'Of proceedings for a commission in lunacy pending at,the time of the payee’s death, and the answer in proceedings for probate of his will, was rejected. Held, no-error, as their relevancy and materiality were not apparent, and because they included hearsay evidence.
    Error cannot be predicated upon a rejection of an offer which coupled admissible, evidence with that which is inadmissible.
    A defense of undue influence or duress is only available to the person who was subjected thereto, or to his legal representatives.
    Appeal from a judgment of the General Term of the City Court of New York, which affirmed a judgment for the plaintiff rendered by the justice at Trial Term of the said court without a jury.
    Action by the indorsee of a promissory note against the maker.
    
      Brooke <& Brooke, for appellant.
    ■ Alex. S. Bacon, for respondent.
   Bisohoff, J.

To an action by the indorsee of a promissory note, payable to the order of one Robert L. Darragh, against the maker, the defendant, after denying the fact of indorsement, as well as the plaintiff’s title to and ownership thereof, answered that the note was indorsed in the name of the payee and transferred to the plaintiff by one Laura A. Darragh, who assumed, in that behalf, to act under a power of attorney which was executed by the payee while insane, and procured of him by means of undue influence and. duress. The cause was tried before the justice, without a jury, at Trial Term of the court below, and resulted in a judgment for the plaintiff. Such judgment was affirmed at General Term of the court below, and from the judgment of affirmance the defendant has appealed to this court.

Upon the trial the note was-produced and conceded to be genuine. Furthermore, the fact of the indorsement in the payee’s flame by Laura A. Darragh was admitted, and the power of attorney under which the latter assumed to act received in evidence. This power of attorney was directed to Laura A. Darragh and Edgar Whitlock, but in terms authorized the persons last named, jointly and singly, “to indorse, either for collection or otherwise, any check, draft, bill of exchange or promissory note drawn to bearer or- to (the order of the principal,’ or indorsed payable to ‘ the prin- . cipal or his order,’ and to execute and deliver all proper and necessary instruments for the assignment or satisfaction of any and all mortgages held by c the principal ’ on either real or personal estate, or of other evidence of indebtedness.” .This was ample evidence of authority in Laura A. Darragh, without Whitlock’s joinder, to indorse and transfer the note in suit, and the note and indorsement each imported a sufficient consideration. Abb. Tr. Ev. 403, 413. The defendant’s attitude conceded his refusal to pay the note, and demand of payment of a promissory note is not a condition precedent to a right of recovery against -the maker. 5 Am. & Eng. Ency. of 'Law, 46, 528, and cases collated in note 4. The plaintiff’s right to the judgment rendered was, therefore, incontestable, in the- absence of proof of a valid defense.

It seems that one non compos mentis, is incapable in law of appointing ail agent, and that such an appointment is void and not voidable merely. Dexter v. Hall, 15 Wall. 9; 82 U. S. (L. ed.) 73; Bunce v. Gallagher, 5 Blatchf. 481; 7 Am. L. Reg. (N. S.) 32: Zouch v. Parsons, 3 Burr, 794; Ewell’s Lead. Cases, 3; Fonda v. Van Horne, 15 Wend. 631; Fetrow v. Wiseman, 40 Ind. 148; Ewell’s Lead. Cases, 22. • Assuming, therefore, that the payee’s insanity at the time of the execution and delivery of the power of attorney was available as a defense to this action, we .must, notwithstanding, conclude that the judgment appealed from is unimpeached, since the record is destitute. o,f evidence in support of the •defense, and presents no valid exception to- the exclusion of •evidence. , It was not contended iii the defendant’s behalf that the payee had ever been adjudged to be of unsound, mind. Such an adjudication would have been conclusive of the fact with regard to all subsequent acts of the person declared to be incompetent, and prima facie evidence of the fact with regard to his acts done within the period during which he was adjudged to have been incompetent. 2 Black Judg. § 802; Hughes v. Jones, 116 N. Y. 67. The defendant, however, contented himself with offering in evidence (1) “ á copy of the verified answer to petition for probate, of an instrument purporting to be the last will and testament of said Robert L. Darragh, decedent, in proceedings now pending in the Surrogate’s Court of the county of Hew York;” (2) “copies of record in Court of Common Pleas in proceedings for commission in lunacy of person and estate of Robert L. Darragh, pending at the time of his deceaseand (3) “ petition and affidavits in support of proceedings and application for commission in lunacy in Court of Common Pleas, pending at time of death of. Robert L. Darragh.” The papers to which the several offers alluded do not appear in the record. Elence, we have no means of determining their relevan qy or materiality (Hughes v. Hughes, 10 Misc. Rep. 180, 183), and we may not presume error. Id. Again, the several offers comprehended matter which was so palpably hearsay that, even assuming its relevancy and materiality, its exclusion was imperative to avoid error. Lastly, the defendant offered “ oral testimony * * * that Robert L. Darragh was of unsound mind and mentally incompetent to make such power of attorney, and to prove the undue influence of the said Laura A. Darragh over and upon Robert L. Darragh at thé time of making the same.” This testimony was likewise excluded, under objection and exception, as “irrelevant, incompetent and immaterial.” The vice of the offer was that it coupled evidence admissible under the assumption that the insanity of the payee was a valid defense with evidence which was inadmissible, since the procurement of the power of attorney by means of undue influence and duress was a defense available alone to the payee or his legal representatives. 6 Am. & Eng. Ency. of Law, 90. The evidence having been in part properly rejected, no error is apparent from the ruling. Baylies’ Tr. Pr. 203, and cases there collated. -

The judgment should be affirmed, with costs.

Daly, .Oh. J., and Pbyob, J., concur.

Judgment affirmed, with costs.  