
    HOSEA CRANDALL, Appellant, v. ALBERT W. SCHROEPPEL, Respondent.
    
      Promissory note — real party in interest—right of party paying, to lime note surrendered or canceled.
    
    This action was brought on a promissory note; made by the defendant, payable to the plaintiff or bearer. At the trial, the note was produced by a witness, who claimed to own it as administrator of an estate, while the plaintiff testified that ne owned the note, and that it had never been transferred or paid. Held, that the plaintiff was not entitled to recover, as he had not possession of the note, and it was not lost.
    A party paying a promissory note, or negotiable bill, is entitled to the delivery of such note or bill, on payment, or its production, that it may be discharged or destroyed in his presence.
    
      Van Alstyne v. The National Commercial Bank of Albany (7 Transcript Appeals, 241) followed.
    Appeal from a judgment of the County Court of Onondaga county, reversing a judgment of a justice of the peace, in favor of the plaintiff.
    The action was upon a promissory note, made by defendant to plaintiff as payee or bearer. At the trial, the note was produced by a witness, who claipied to own it as administrator of an estate, and plaintiff then testified that he owned the note, had never transferred it, and that it had not been paid. The justice gave judgment for the plaintiff, for the amount remaining unpaid on the note, and the defendant appealed to the County Court, where the judgment was reversed.
    
      I. D. Garfield, for the appellant.
    
      William G. Ruger, for the respondent.
   E. Darwin Smith, J.:

None of the grounds of error, stated in the notice of appeal served upon the justice, are sufficient to raise any question for review, according to the cases of Delong v. Brainard and Nolan v. Page, except the ground that the justice erred in denying the motion for a nonsuit, made by the defendant at the trial.

This specification was, I think, sufficient to raise the question presented on the motion for a nonsuit before the justice. The ground of error, thus stated, must be deemed to refer to the grounds stated and urged on the motion for the nonsuit. One ground stated for such motion, was, that the note, upon which the action was brought, is now held by the administrators of Charles Crandall, deceased, and they claimed to own the same, and, from the facts proved, they are the owners.

The County Court doubtless reversed the judgment of the justice on tins ground, it appearing that the note was negotiable, being payable to the plaintiff or bearer, and was in the hands of the administrators named, who claimed title to it, and produced it at the trial under protest, claiming to own it. Upon these facts appearing, I think the plaintiff should have been nonsuited. He had not possession of the note, and it was not lost. A party paying a promissory note, or negotiable bill, is entitled to the delivery of such note or bill, on payment, or its production, that it may be discharged or destroyed in his presence.

It was held in Freeman v. Boynton that a demand of payment of a promissory note of the maker, with the view to charge the indorser, was not good, because the person” making the demand, had not the note with him to deliver it up on receiving payment. Judge Parker, in the opinion, said: “ The debtor may well refuse to pay, on the ground that he has a right to have his obligation or contract, or to see it canceled, when he is called upon to discharge it; and this rule should especially apply to negotiable securities.”

The judgment rendered by the justice, did not necessarily extinguish this note, for the plaintiff could not produce it to the justice for cancellation, or give a valid discharge of it, which would have protected the defendant from another suit, and judgment upon it, by the holder ; nor would the payment of the judgment, rendered by the justice, have that effect. The title to the note could not be judicially settled in this suit, because the administrators of Charles Crandall are not parties to the action, and could not be bound by any decision of the justice on that point; nor could the plaintiff by his own testimony establish his title to the note, as against such administrators.

The case of Van Alstyne v. The National Commercial Bank of Albany, in principle, I think, settles this question.

That was an action upon a draft, against the drawers, held adversely, as with the note in this case. The Court of Appeals held that the plaintiff could not recover without the .production of the draft at the trial, and could not. throw upon the bank the burden of litigation between the conflicting parties claiming such draft, and could not recover upon it as a lost draft.

The judgment of the County Court, reversing that of the justice, should be affirmed.

Present—Mullin, P. J., Smith and Gilbert, JJ.

Judgment affirmed. 
      
       1 N. Y. Supreme Court, 1.
     
      
       Addenda in N. Y. Sup. Ct. R., p. 2.
     
      
      
         Bank of Utica v. Smith, 18 Johns., 240.
     
      
       7 Mass., 486.
     
      
       7 Transcript Reports of the Court of Appeals, p. 241.
     