
    Calvin Day, and others, Appellants, v. Thomas P. Saunders, Respondent.
    A party who intrusts another with his acceptance in blank, is responsible to a bona fide holder, although the blank be filled with a sum exceeding that fixed as a limit by the acceptor.
    The doctrine in Brown v. Leavitt (31 ÍT. T. 113), applied in this case, to determine what constitutes a bona fide holder.
   Davies, Ch. J.

On the 2d of November, 1859, the plaintiffs were the owners and holders of four promissory-notes made by one J. H. Whipple. The whole amount due thereon for principal, interest and protest fees, was on that day $1,031.25. Two of the notes were overdue, upon which suits had been commenced by the plaintiffs against Whipple, and on said 2d of November plaintiffs agreed to accept Whipple’s note for the amount of said four notes, at forty-five days, to be indorsed by the defendant Saunders. On the 22d of November, 1859, plaintiffs’ attorney received the note in suit, indorsed by Saunders, delivered up to Whipple his four notes, and Whipple paid said attorneys the costs incurred in the two suits, on the two overdue notes of Whipple, amounting to the sum of $24.92, and gave a receipt therefor in these words: “Received payment November 22,1859, and suit discontinued.” Saunders’ indorsement had been obtained in blank, and to be used for a different and another purpose.

On the trial the court held that the plaintiffs were only entitled to recover to the extent of the amount of the two notes of Whipple not due at the time of the delivery of the note in suit to them, and that said plaintiffs were not bona fide holders of the note in suit for the value or amount of the two notes of Whipple, which were overdue. The plaintiffs had a verdict for the amount of said two notes not due, % amounting to $239.65, which judgment, on appeal to the General Term, was affirmed, and the plaintiffs now appeal to this court.

The Supreme Court was clearly correct in holding that the plaintiffs were entitled to recover against this defendant upon the note in suit, to the extent that they were bona fide holders thereof. In Van Duzer v. Howe (21 N. Y. 531), this court decided that a party who intrusts another with his acceptance in blank is responsible to a bona fide holder, although the blank be filled with a sum exceeding that fixed as a limit by the acceptor. But the court erred in holding" that the plaintiffs were not bona fide holders of the two notes overdue, .for the payment of which the note in suit was equally received as for the two notes not then due. The facts are indisputable that the note in suit was transferred in payment of the four notes of Whipple then held by plaintiffs.

The facts of this case are not distinguishable from those presented in Brown v. Leavitt (31 N. Y. 113). It was there stated that the note in suit in that case was indorsed and delivered by persons composing the firm of Zebley & Co. to the plaintiff’s testator, before it fell due, in payment, so far as it went, of a large note then held by the testator and overdue. It was received with other notes, and a balance in cash, as such payment of the larger note, delivered to Zebley & Co. We then said: “In this State it is settled by abundant authority that this transaction constituted the plaintiff’s testator a holder for value of the note in question. A further discussion of the question might lead to a suspicion that the law was in doubt on the point.”

The judgment should be modified by increasing the amount of the verdict from $239.65 to the amount due upon the four notes at the date of the verdict, and that judgment for that sum and interest thereon be affirmed with costs. If the parties cannot agree upon such amount, then the Supreme Court is directed to ascertain the same and render judgment for the plaintiffs with costs accordingly.

Judgment accordingly.  