
    Annie E. McMoran, Respondent, v. Charles E. Lange, Defendant, and Margaret J. Lange, Appellant.
    
      Bills and notes — insufficient complaint against one who indorsed a promissory note before its delivery to the payee — Negotiable Instruments Law not available to cure the defect — upon a motion for judgment on an answer as frivolous the defendant may attach the complaint.
    
    A complaint in an action upon a promissory note made before the Negotiable Instruments Law went into effect which, after alleging the making of the note, states that the maker delivered it to the plaintiff and that a third party indorsed it before delivery, but does not allege that the.indorsement was made in order to give the maker credit with the payee or as a surety for the maker, is fatally defective.
    
      Semble, that it would be otherwise were the note made after the taking effect of the provisions of the Negotiable Instruments' Law (Laws of 1897, chap. 612, '§ 114), enacting that when a person, not otherwise a party, indorses in blank before delivery an instrument payable to the order of a third party, he is liable as indorser to the payee.
    A defendant has a right to attack the complaint when a motion for judgment .is made upon the ground that his answer is frivolous.
    ■ Appeal by the defendant Margaret J. Lange from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Saratoga, on the 4th day of November, 1897, upon an order made at the Saratoga Special Term and'entered in the office of the clerk of the county of Saratoga on the 21st day of October, 1897, granting a motion of the plaintiff for judgment upon the ground that the defendant’s answer was frivolous, and directing that plaintiff have judgment as prayed for in the complaint, with notice of an intention to bring up for review upon such ' appeal the said order.
    
      Nash Rockwood, for the appellant.
    
      C. S. & C. C. Lester, for the respondent.
   Merwin, J.:

The defendant, in opposing the motion for judgment on account of the frivolousness of the answer, had a right to ■ attack the complaint. (Van Alstyne v. Freday, 41 N. Y. 174; Wilkin v. Raplee, 52 id. 248, 251.) The complaint, according to numerous decisions (Edison General Electric Co. v. Zebley, 72 Hun, 166 ; McPhillips v. Jones, 73 id. 516 ; Woodruff v. Leonard, 1 id. 632; Draper v. The Chase Manfg. Co., 2 Abb. N. C. 79), was fatally defective, unless, as claimed by the plaintiff, the defect was obviated by the provisions of section 114 of the Negotiable Instruments Law (Chap. 612, Laws of 1897), taking effect October 1, 1897. The order for judgment was made at Special Term in June, 1897.

The action was upon a promissory note dated July 30, 1896, made by the defendant Charles E. Lange and payable to the order of the •plaintiff-three months after date. The allegation of the complaint is that the defendant Charles E. Lange made the. note, a copy of which was set out, “ and delivered the same to the plaintiff, and the ■said Margaret J. Lange, before the delivery thereof to plaintiff, indorsed the said note, and the same was thereupon,, and before- it came due, for value received, duly transferred to the plaintiff, who then became and still is the owner and holder thereof.” There was no allegation that Margaret indorsed it in order to give the maker credit with the payee or as surety for the maker. An allegation to that effect is held to be necessary in the cases above cited.

By section 114, above referred to, it is provided that when a person, not otherwise a party, indorses in blank, before delivery, an instrument payable to the order of a third party he is liable as indorser to the payee.

According to the law as it stood when the action was commenced, certain facts must exist beyond the simple fact of indorsement in order to make the defendant liable. The subsequent statute makes a different, obligation, and, therefore, does not affect prior contracts.

We are of the opinion that this act, not taking effect till October 1, 1897, does not help the plaintiff on this appeal. '

It follows that the order for judgment was improperly granted. It seems that under section 3238 of the Code we have no discretion as to the costs of the appeal.

All concurred.

Judgment and order reversed, with costs, and motion denied.  