
    Bornstein v. Kauffman.
    (New York Common Pleas
    General Term,
    June, 1893.)
    A promissory note was made by B. to the order of A., indorsed by defendant and delivered to A., who indorsed and delivered it to plaintiff. Held, that in the absence of proof that it was made to give the maker credit with A., plaintiff could not hold the defendant liable thereon.
    Admission of the indorsement and promise to discharge the liability on it, is not equivalent to such proof, because a promise only to discharge the liability apparent on the paper.
    Appeal from judgment of General Term of City Court on verdict by direction of the court. The opinion states the case.
    
      Louis Steckler, for defendant (appellant).
    
      Allen M. Stoddard, for plaintiff (respondent). •
   Pbyob, J.

The action is on a note made by Harriet Edwards "to the order of Annie Allen, indorsed by the defendant and -delivered to Allen, and then indorsed and delivered by Allen, to the plaintiff.

Since Herrick v. Carman, 12 Johns. 159, it has been the law of New York that, upon the relations of the parties as they appear on this, paper, without more, the plaintiff cannot recover against the defendant. Moore v. Cross, 19 N. Y. 227; Bacon v. Burnham, 37 id. 614; Phelps v. Vischer, 50 id. 69; Coulter v. Richmond, 59 id. 478; Wyckoff v. Wilson, 36 N. Y. St. Repr. 35; 13 N. Y. Supp. 270.

But that, upon the plea and proof of the intention of the defendant to give the maker credit with the payee, he may be held as prior indorser, is an undeniable proposition. Cases, supra.

The complaint contains no allegation to fix the defendant with liability as first indorser; but evidence for that purpose was received without available objection, and we are to determine whether it suffices to warrant an inference that the •defendant intended to become surety for the maker in favor -of the payee.

Before accepting the note the plaintiff called upon the defendant, showed him the note, and asked him, “ Is this your indorsement?” The defendant replied, “Yes, sir, it is my indorsement; ” to which the plaintiff responded, “ The party that has the note wants me to take it as money, and if I take it, will it be all right ? ” The defendant answered that “ it would be all right when it becomes due.”

On the conclusion of plaintiff’s case the defendant offered no evidence; and, as both parties moved for the direction of a verdict, the issues of fact were submitted to the court for determination. The decision was for the plaintiff; and if the evidence be sufficient to authorize a finding that by his indorsement the defendant intended to give the maker credit with the payee, we cannot disturb the conclusion of the court; but, if otherwise, the judgment must be reversed. Dillon v. Cockcroft, 90 N. Y. 649.

Upon the evidence it is neither apparent that the defendant was privy to the consideration between the maker and payee, nor that he intended by his indorsement to become surety for the maker with the payee. True, his name was on the note when delivered to the payee, but the legal effect of the fact was that he incurred a liability subsequent and subordinate to ' that of the payee. Bacon v. Burnham, 37 N. Y. 614, and Coulter v. Richmond, 59 id. 478. True again, the defendant acknowledged the indorsement, but an indorsement which, in law, bound him only after the payee. True still further that he said the note would be all right at maturity, but this, at the most, was a promise to discharge his liability as apparent on the paper, that is, as second indorser. In short, at the interview with the plaintiff not a word fell from the defendant which tended to qualify his legal responsibility upon the note.

Unquestionably, the plaintiff took the note on the faith of the defendant’s admission of liability, but of the liability which the law imposed between the parties.

The plaintiff said, “ The party that has this note ” (the payee) “ wants me to take it as money, and if I take it, will it be all right ? ” The defendant assented; that is, he agreed to be surety for the payee, but such he was already by force of his indorsement, not, however, in behalf of the plaintiff.

The evidence is insufficient to justify the direction of the verdict for the plaintiff. Phelps v. Visher, 50 N. Y. 69, 74.

Judgment reversed and new trial ordered, costs to abide event.

Bookstaveb and Bischoef, JJ., concur.

Judgment reversed and new trial ordered.  