Meise v. Doscher — 23 N.Y.S. 49

Majority

p. 49

(68 Hun, 557.)

MEISE v. DOSCHER et al.

(Supreme Court, General Term, First Department.

April 14, 1893.)

Headnote

1. Directing Partial Judgment—Severance of Action as to Balance.

The answer in an action on a note admitted the making of the note by defendant, but stated that defendant, being indebted to plaintiff in the sum of $2,386, was induced to give the note sued on, for $3,000; that he had paid $1,922; “and that he is now indebted to her [plaintiff] thereon in the sum of $435, only.” Held, that the court properly directed judgment for the sum admitted to be due, and severed the action as to the residue; Code Civil Proe. § 511, providing that, where the answer “admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may * * • order that the action be severed; that a judgment be entered for the plaintiff for the sum so admitted; and * * * that the action be continued” as to the residue.

2. Negotiable Instruments—Action by Payee against Indorser.

In an action by the payee of a note against an indorser, plaintiff cannot recover unless there is some allegation or evidence explaining the circumstances of the indorsement, as it will otherwise be presumed that the indorser intended to make himself liable on the note subsequent to the payee.

Appeal from special term, New York county.

Action by Louise Meise against John H. Doscher and another. From a judgment entered on an order severing the action, and directing judgment for an amount admitted to be due in the answer, defendants appeal.

Eeversed in part, and affirmed in part.

p. 50

Argued before VAN BRUNT, P. J., and O’BRIEN and INGRAHAM, JJ.

J. H. Hull, for appellants.

J. G. Flammer, for respondent.

This action was brought to recover against the defendant Doscher, as maker, and the defendant Newman, as indorser, of two promissory notes. The defendants, answering, admitted the making of the notes by Doscher, and their indorsement by Newman. It then alleged that Doscher, being indebted to the plaintiff in the sum of $2,386.05, was induced to sign and deliver the notes in question for $3,000; and then, as a further defense, that Doscher had paid to the plaintiff, upon the note, $1,922.86, and that he is now indebted to her thereon in the sum of $435.70, only. Under this condition of the pleadings the court was justified in directing the judgment appealed from, as against Doscher. Section 511 of the Code provides that where “the answer of the defendant, ekpressly, or by not denying, admits a part of the plaintiff’s claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed; that a judgment be entered for the plaintiff for the part so admitted; and, if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder ■of the claim.” Under the pleadings, therefore, the maker being indebted upon the notes in the amount stated in the answer, the indorser would ordinarily be liable to the plaintiff therefor; and under section 511, above referred to, .judgment might be directed •against both the maker and the indorser.

But in the case at bar it appears that the plaintiff was the payee of the note, and the presumption of law would be, without some allegation or evidence explaining the circumstances of the indorsement, that the indorser placed his name upon the paper, intending to be liable thereon subsequent to the payee. Therefore, in the case at "bar, there being no allegation in the complaint that the indorsement of the notes by the indorser was intended to give credit therewith to the payee, no liability against the indorser appeared upon the “face of the pleadings. The judgment and order should be reversed •as to the defendant Newman, and affirmed as to the defendant "Doscher, without costs to either party.