
    VOORHEES against NATIONAL CITIZENS’ BANK.
    
      Supreme Court, First District;
    
    
      General Term, February, 1872.
    Bills, Notes and Checks.—Costs on New Trial.
    A bank having once made a loan to A. on a note, and the loan having been paid and the note returned, B., who meanwhile had become owner of the note, went with A. to the bank and asked for a second loan thereon to A. in a limited amount. Held, that this request was not equivalent to notice that B. was the owner of the note, and the bank could hold the note for further advances made on the faith of it to A.
    
      When a new trial is granted on the ground that the verdict or report on questions of fact is against the weight of evidence, it must be on payment of costs.
    
    The plaintiff, James C. Voorhees, as assignee of one Crawford, sued defendants to recover a part of the proceeds of a note which had been lodged with defendants as collateral to a loan, and had been collected by them under the following circumstances :
    The note was made by one Smith for three thousand seven hundred and fifty dollars, payable to the order of Devereux, Rich & Co., who held it, and lodged it with the defendants as collateral to a loan, which they afterward paid, and received back the note some time before its maturity. They then indorsed and transferred the note, for value, to Crawford. He subsequently lent them the note again for the purpose of enabling them to obtain a loan thereon to the amount of three thousand ' dollars. Crawford testified as a witness, that on the occasion of the second loan, he took the note and went to the bank, in company with Mr. Devereux, of the firm of Devereux, Rich & Co., and asked the president to lend the firm three thousand dollars on the note, and Mr. Devereux gave his check attached to the note, and the loan was accordingly made.
    Devereux, Rich & Co., did not repay the loan, and became further indebted to the bank, and agreed with the bank that the note might remain as collateral to secure their whole indebtedness.
    The note was finally collected by the bank, and they claimed to apply the entire proceeds on the indebtedness of Devereux, Rich & Go.' Crawford claimed that they could only apply three thousand dollars in this manner; and assigned his claim to the plaintiff, who thereupon brought this action.
    The referee found for plaintiff; and defendants appealed.
    
      H. P. Allen, for defendants, appellants.
    
      R. W. Andrews, for plaintiff, respondent.
    
      
       To the same effect is Wilson v. Lester, 64 Barb., 431. In Wentworth v. Candee, 17 How. Pr., 405, it was held that the costs in such cases should abide the event, and that rule has been applied frequently in other cases where the point has not been raised.
    
   By the Court.—Ingraham, J.

The evidence shows that the note in question was the property of Devereux, Rich & Co., when first left with the bank.

It is a matter of doubt when the interest in the note was transferred to Crawford. The referee finds it was so transferred before it became due.

Whether that is so or not, there is no sufficient evidence of any notice to the bank, after the note passed into théir possession on the second loan.

If after that second loan the bank advanced money on the note as security, having received the note from Devereux, they had a right to suppose the firm still to be the owner.

The mere fact of Crawford going with Devereux, and asking for such a loan, was not notice.

It may be, on another trial, that the plaintiff may be able to prove that there were other facts from which such notice may be inferred, but as the case now is presented to us, we think the finding on this point is against the evidence.

Where a new trial is granted on the ground that the verdict or report is against the weight of evidence, the same is to be on payment of costs.

New trial granted on payment of costs of the trial before the referee and of appeal. 
      
       The question of costs was raised on the settlement of the order by the appellant’s counsel, who insisted that they ought to abide the event ; but the court held that decision was right, and settled the order as above.
     