Casey v. Stewart — 30 N.Y.S. 808

Majority

p. 808

CASEY v. STEWART et al.

(City Court of New York, General Term.

October 23, 1894.)

Headnote

Negotiable Instruments—Action against Indorser.

Before the payee of a note can recover thereon against the indorser, he must overcome the presumption that he (the payee) was intended to be the first indorser.

Appeal from trial term.

Action by Richard H. Casey against Walter H. Stewart and Frederick Gillies Payne, impleaded, on a promissory note. The complaint was dismissed, and plaintiff appeals. Affirmed.

Argued before EHRLICH C. J., and FITZSIMOHS and NEWBIIRGER, JJ.

P. Chauncey Anderson, for appellant.

William Erbie, for respondent Stewart.

James Flynn, for respondent Payne.

The action was upon a promissory note made by the Cosmopolitan Club to the order of the plaintiff, and indorsed by the defendants. The note, upon its face, imported that the plaintiff was the payee, and presumptively was to become the first indorser. In order to overcome that presumption, and make the defendants first indorsers, it was necessary to show that they indorsed the note under circumstances which negatived the legal presumption. This he failed to do, and the trial judge properly dismissed the complaint. We find no error requiring a new trial, and the judgment must be affirmed, with costs. All concur.