Majority
p. 25DODGE et al. v. OCKERHAUSEN. (Supreme Court, General Term, Second Department. February 13, 1893.)
Headnote
Negotiable Instruments—Indorsement—Counterclaim.A note passes to an indorsee free of any counterclaim that may have existed in favor of the maker against the payee.
Appeal from circuit court, Kings county.
Action by Arthur M. Dodge and others against Henry A. Ockerhausen to recover on two promissory notes for $500 and $519, respectively, given by defendant to plaintiffs in renewal of a certain other note, for $1-019. The note for $1,019 had been given by defendant to Keely & Son for work done by them on á building. Keely & Son, being indebted to plaintiffs in this amount for lumber used in defendant’s buildings, indorsed the note to plaintiffs. When the note became due the renewal notes were given directly to plaintiffs by defendant. Plaintiffs had judgment, which was entered on a verdict directed by the court. Defendant appeals.
Affirmed.
p. 26Argued before BARNARD, P. J., and DYKMAN and PRATT, JJ.
Esselstyn, Ketoham & Safford, (Philo P. Safford, of counsel,) for appellant.
Randolph Parmly, for respondents.
The note of $1,019, in renewal of which the notes in suit were given, was executed for a good consideration. If, at the time it was made, any counterclaim existed against the payee, in favor of the maker, it did not attach to the note. That passed to the indorsees free from any set-off. If Keely & Son had a cause of action against plaintiff for delay in delivering the lumber, they have it yet. There is no evidence that it has been transferred by them to this defendant. The court below correctly held that there was no question for the jury. Judgment affirmed, with costs.