
    First National Bank of Scranton, Resp’t, v. Abraham Wolf, Impleaded, etc., App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed January 28, 1889.)
    
    1. Promissory note—Partnership liability.
    The note in suit was made by A. Wolf & Co. to the order of and endorsed by Shaw & Co. IngersoII, a partner of the defendant, made the note without defendant’s knowledge and gave it to one J., with directions to get it discounted by Shaw & Co. It is alleged that J. appropriated the proceeds of the note to his own use. The plaintiff received the note in the course of business for value and before maturity. Held, that the note made by IngersoII as a member of the firm of Wolf & Co. was valid with - out notice to the contrary.
    2. Same—Holder eor value.
    That the plaintiff was a holder for value, and as such its title could not be assailed without proof of the alleged diversion.
    Appeal from a judgment on verdict.
    
      Thomas S. Wise, for app’lt; Douglas, for resp’t.
   Brady, J.

This is an action on a note for $3,581.90 which matured August 19, 1887, and was made by A. Wolf & Co., to the order of and endorsed by Shaw & Co. The facts are as follows, the statement found on the plaintiffs brief being adopted as a correct summary: “ The plaintiff received the note on March 11, 1887, from Shaw & Co., as collateral security for a loan of $20,000; on April 23, 1887, the plaintiff also made Shaw & Go. another loan of $20,000 under the agreement that the. collateral security held for the first loan should continue as collateral for the second. There had been paid upon the two loans at the time of the trial $19,156.19 and the remainder was then unpaid. The defendant, Wolf, was a member of the firm of A. Wolf & Co; the note was made by his partner, Ingersoll, without his knowledge. He never heard of the note until he was served with the summons, in this action. Ingersoll gave the note to W. C. Jones, with directions to get it discounted by Shaw & Co., and to bring the proceeds to him, or to return the note to him if it was not discounted ; he never did receive the proceeds, nor was the note returned to him, nor did he or his -firm ever receive any consideration for the note.

The note made by Ingersoll, as a member of the firm of Wolf & Co., was valid without notice to the contrary. Atlantic State Bank. v. Savery et al., 82 N. Y., 291. The plaintiff was a holder for value and as such its title could not be assailed without proof of notice of the alleged diversion. Grocers' Bank v. Penfield, 7 Hun, 279; affirmed 69 N. Y., 502; Belmont Branch Bank v. Hoge, 35 N. Y. 65; Bank of New York v. Vanderhorst, 32 id., 553; Cowing v. Altman, 71 N. Y. 435.

The defense was presented in several elements, namely, defendant’s ignorance of the making of the note; its diversion; the alleged appropriation of the money received on its discount by the person to whom it was intrusted for that purpose, and the failure of the title of the plaintiff because it was not a bona fide holder for value. The defense was visionary. There was nothing to establish the least component part of it, if any of it were proved, namely the absence of good faith and that no value was parted with by the plaintiff, and as there was no conflict, no issue, the case was one for the direction of a verdict.

The exceptions are of no value for the reason that they are the outcome of the theory that the plaintiff was not a holder for value and could not, therefore, succeed; but they rested upon theory only. The note was given as security for money advanced. It must not be overlooked that when the note was made, the maker, Ingersoll, gave it to one Jones to be discounted through Shaw & Co., and it therefore reached that firm by express arrangement. The discount of the note was authorized, and that any diversion was shown is problematical at best. The note, with others, was given as security for $20,000 loaned to Shaw & Co., and was thus discounted as contemplated. The non-payment of the sum to Ingersoll was, in fact, the diversion, and with this the plaintiff had nothing to do. The note was made for the purpose of borrowing money and the object was accomplished. It was the maker’s agent who failed in duty after the purpose of making the note was accomplished.

We see no reason, therefore, in any point of view to disturb the judgment.

It should be affirmed, with costs.

Ordered accordingly.

Van Brunt, Ch. J., and Macomber, J., concur.  