
    Luzern A. Williams, Respondent, v. First National Bank of Syracuse, Appellant.
    
      Promissory note—delivered upon condition that it should-not be enforced against tho makers.
    
    In an action to recover a deposit in a national bank, the defendant alleged as a defense, that it held a promissory note upon which the plaintiff was liable, which it had charged against such deposit, in reply to which the plaintiff alleged that there was an agreement between the parties to the note and the bank to the effect that the note should not be used as any evidence of liability against the makers thereof, except as it might become necessary to show the-same to a bank examiner, and that in no event should the parties be held liable upon the note, and that it was delivered upon condition that the same should not be enforced against the makers, or either of them.
    
      Held, that a judgment entered upon a verdict in favor of the plaintiff upon the issue presented by the reply would not be reversed.
    McLennan and Smith, JJ., dissented.
    Appeal by the' defendant, the First National Bank of Syracuse,, from a judgment of the Supreme Court in favor of .the plaintiff, entered in the office of the clerk of the county of Onondaga on the-31st day of October, 1898, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of November, 1898, denying the defendant’s motion for a new trial made upon the minutes.
    
      Jerome L. Cheney, for the appellant.
    
      Ceylon H. Lewis, for the respondent.
   Hardin, P. J.:

The plaintiff brings this action to recover a deposit-of $2,000 in the defendant corporation. Against that deposit the defendant set. up that at One time it held a promissory note for $2,000 made by M., S. Williams, H. L. Williams and L. A. Williams- to the order of L; A. Williams, or bearer, dated December 27, 1892, given in renewal of a note dated September 21, 1892, for $2,000, the name ■ of the payee being left blank; and claimed,that after the last note in the series became due it charged- it to the plaintiff’s account, and insisted that the same was an offset against the claim of the plaintiff. In reply to such defense and claimed offset the plaintiff replied that, at the time the original note was delivered to the bank, there was an agreement between the parties to the note arid the cashier of the defendant to the effect that the note should not be used as any evidence of liability.against the makers thereof, except as it might become necessary to show the same to a bank examiner, and that in no event should the parties be held liable upon the note, and that it was delivered upon condition that the same should not be enforced against the makers or either of them.

In support of the position taken by the plaintiff in respect to the note there was evidence sufficient to sustain the verdict of the jury. The plaintiff's evidence, however, was contradicted in some essential respects, and a sharp question of fact, was developed, which was properly submitted by the trial'judge to the jury. The trial judge refused to set aside the verdict as being against the .weight of evidence, and in doing so we think he committed no error. .

The position of the plaintiff in respect to the agreement that the parties to the note should not be held liable, and that the note was delivered on condition that they should not be liable, is challenged by the appellant. The authorities which are cited support, the contention of the plaintiff in regard to the conditional delivery of the note and the agreement contemporaneous with its delivery, which was made by the cashier, one of the principal officers of the defendant. (Benton v. Martin, 52 N. Y. 570; Garfield National Bank v. Colwell, 57 Hun, 169; Higgins v. Ridgway, 90 id. 399; S. C. affd., 153 N. Y. 130; Andrews & Co. v. Hess, 20 App. Div. 194; Simmons v. Thompson, 29 id. 559; Persons v. Hawkins, 41 id. 171, and cases cited in the opinion.)

This court is so far committed to the doctrine of the cases laid down that it should adhere to and follow them.

This case differs from Allen v. First National Bank (127 Penn. St. 51), as in that case the cashier was a member of the firm whose note was delivered, and the defense sought to be made was condemned because it was held that the cashier-could not act in the double capacity, he being a member of the firm whose note was delivered to the bank. In the case in hand the cashier was not a party to the note made by Williams.

This case differs from First National Bank of Whitehall v. Tisdale (84 N. Y. 655), as in that case the court “ refused to find an understanding or agreement that the note was to be used to make a better showing with the bank examiner, and that the maker should not be called upon to pay; ” and in the absence of a finding that there was an agreement it seems that when it was said *“ that the alleged agreement was beyond the authority of plaintiff’s president to make and did not bind it,” the remark was oloiter.

Following the doctrine laid down in the Higgins case, and the other authorities to which reference has been made, we are of the opinion that we should sustain the verdict of the jury and affirm the judgment and order.

Adams and Spring, JJ., concurred; McLennan and Smith, JJ., dissented.

Judgment and order affirmed, with costs.  