Vilas National Bank v. Barnard — 28 N.Y.S. 922

Majority

p. 922

VILAS NAT. BANK OF PLATTSBURGH v. BARNARD et al.

(Supreme Court, General Term, Third Department.

May 8, 1894.)

Headnote

Negotiable Instruments—Accommodation Paper.

An answer which alleges that the note sued on was accommodation paper, and was made and delivered on condition that defendants should not be held liable thereon, provided there was delivered to plaintiff good business paper of the person accommodated, is insufficient, because it does-not allege that the agreement to replace such note with other paper was made with plaintiff.

Appeal from special term, Clinton county.

Action by the Vilas National Bank of Plattsburgh against Henry E. Barnard and Benton Turner on a promissory note. From a judgment in favor of plaintiff for $5,116.71 damages and costs, and from an order overruling defendants’ answer as frivolous, and ordering that plaintiff have judgment in the action for damages and costs as above stated, defendants appeal. Affirmed.

Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.

Foote & Stokes (Wallace T. Foote, Jr., of counsel), for appellants.

Shedden & Booth (L. L. Shedden, of counsel), for respondent.

The defendants allege that the note in question was for money loaned and advanced by the plaintiff to’ benefit of a third person, and that said money was not loaned to the defendants, or either of them, and that they did not have the same; which facts the answer alleges the plaintiff well knew when said note was made, indorsed, and delivered to it. The answer then proceeds to allege as a defense that the note was made and delivered upon the express condition that the defendants were not to be called upon to pay the same at maturity, provided there was delivered to the plaintiff good business paper of such third party to the amount of the note, which good business paper was the paper received by such party for merchandise sold. There is nothing in the answer to show with whom such agreement was made. While the answer carefully sets forth that the plaintiff knew that the defendants were accommodation indorsers, and received no benefit from said note, it does not state that the agreement to replace such note at its maturity with good business paper belonging to the maker of the note, and received for merchandise, was made with the plaintiff; and, if it was not made with the plaintiff, of course it would be no defense to this action. The answer should plainly and clearly set forth all the facts which constitute the defense relied upon. None should be left for guess or inference. Here the very important fact whether this agreement or condition was made with or known to the plaintiff is not made known to the court. The agreement itself is uncertain. The character of the paper is perhaps sufficiently described, but its terms, conditions, and length of time for which it was to run are uncertain, and the agreement could not be enforced for that reason. Van Schaick v. Van Buren (Sup.) 24 N. Y. Supp. 306 ; Milliman v. Huntington (Sup.) 22 N. Y. Supp. 997 . Judgment should be affirmed, with costs. All concur.