Thompson v. Harrison — 1 Daly (N.Y.) 302

Majority

p. 302

John H. Thompson v. Henry G. Harrison.

Headnote

The redemption of a promissory note by the pledgor, on payment of an advanee made upon it as collateral security, will not carry with it the equitable right of set off against the pledgee, in a suit by the pledgor against the maker of the note.

The fact that the pledgee, while the note was in his hands, brought suit upon it in his own name, is mere matter of evidence of ownership; and it being found as a fiict on the trial, that the note was deposited as collateral merely, —Held, that a counter-claim against the pledgee was properly disregarded.

Appeal by the defendant from a judgment of the Eighth District Court. -

The. facts are stated fully in the opinion of the Court.

A. M. Burr, for appellant.

A. H. Wagner, fur respondent.

By the Court.

This action was brought upon a note made by the defendant to the order of the plaintiff. Before the note became due, the plaintiff borrowed twenty' dollars upon it from one Powell, and indorsed it to Powell to he held by him as collateral security. The note was not paid when it fell due, and Powell brought it hack to the plaintiff, who, being unable to pay back the twenty dollars, told Powell to sue upon it, and take out what was due him. Powell accordingly brought an action upon the note in his own name against the defendant, and the defendant set up in that action as a counter-claim a note made by Powell for a greater amount which was past due, and wdiich the defendant had purchased from the assignee of the payee. Ho further proceeding would seem to have been taken in the action, at least it does not appear that any thing further was done after the pleadings were put in. Powell then returned the note to the plaintiff who paid him hack the twenty dollars and his expenses, and the plaintiff commenced the present suit, to which the defendant set up the note made by" Powell as a counter-claim, it constituted no defence whatever, and the justice properly gave judgment for the plaintiff,

Judgment affirmed.