Hyperlawhypertext legal database Rosenberg v. Schoenwald 126 N.Y.S. 615

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Rosenberg v. Schoenwald

126 N.Y.S. 615 Court N.Y. App. Term Decision date 1911-01-05 English

Delivered by *616 BRADY, J.

Contents

Majority

p. 615
ROSENBERG v. SCHOENWALD.
(Supreme Court, Appellate Term.
January 5, 1911.)

Headnote

Bruns and Notes (§ 256[1] )—Liability of Indorser—Discharge.
Where the notes on which defendant is sued as indorser were given with others by, the same makers and indorsed by the defendant, and all delivered to the plaintiff with a chattel mortgage by the makers of the note as collateral security, and subsequently an action was commenced against the makers of the notes and á purchaser of the chattels to foreclose the mortgage, which action was settled and discontinued, and the plaintiff received a sum of money in settlement, defendant was released from liability on his indorsement.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. § 587; Dec. Dig. § 256.*]
Appeal from Municipal Court, Borough of Manhattan, Second District.
Action by Meyer Rosenberg against Barnett Schoenwald. From a judgment for plaintiff, defendant appeals.
Reversed, and new trial ordered.
Argued before GIEGERICH, BRADY, and GAVEGAN, JJ.
Bernard Fliashnick (Jacob Bernstein, of counsel), for appellant.
Jacob Cebulsky, for respondent.

The plaintiff sued the defendant as indorser of 12 promissory notes, each for $10, and made by Max Engler and Harry Schoenwald. The defendant defended upon the ground that the notes sued upon were the same notes given with others made by the sanie makers, and indorsed by the defendant, and all delivered to the plaintiff, together with a chattel mortgage • signed by the makers of the notes and given as collateral security for the payment thereof; that thereafter the chattels covered by the mortgage were sold to one Isaac Engler, and subsequently an action was commenced by the plaintiff against the makers of the notes and Isaac Engler to foreclose said mortgage, which action was settled and discontinued, and the plaintiff received upon the settlement the sum of $150, and that an instrument in writing entitled in the action was signed by the plaintiff, by the defendant Isaac Engler, and by the attorney for the plaintiff, stating that the action was settled and discontinued, and so marked by the presiding justice.

The action was tried before the court without a jury. The plaintiff proved a prima facie case, and the defendant moved to dismiss the complaint upon the ground that the defendant was relieved as indorser by reason of the settlement of the action referred to. The entire record in that action was not put in evidence, but the facts as. recited above appear sufficiently in the record herein. There was enough to warrant a finding that the makers of the notes and the lien of the mortgage was discharged, and it follows that the indorser, the defendant herein, was released from liability.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.