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Cheever v. Pittsburgh, S. & L. E. Railroad

64 N.Y.S. 65 Court N.Y. App. Div. Decision date 1900-04-14 English

Delivered by WILLARD BARTLETT, J.

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p. 65
(50 App. Div. 422.)
CHEEVER v. PITTSBURGH, S. & L. E. R. CO.
(Supreme Court, Appellate Division, Second Department.
April 14, 1900.)

Headnote

Bills and Notes—Pleading Transfer of Title.
A complaint, in an action on a note, which alleges that it was indorsed and delivered by the payee named therein to F., who delivered the same so indorsed to B., who took the same- from them before maturity for value, in good faith and without notice, and that thereafter the said B., for value, transferred and delivered the said note to J., who thereafter, and before this action, assigned, transferred, and delivered the same to plaintiff, who is now the holder thereof, sufficiently alleges the transfer, assignment, and delivery of the note so as to import a legal title in plaintiff.
Appeal from trial term,' New York county.
Action by John D. Gheever against the Pittsburgh, Shenango & Lake Erie Bailroad Company on promissory notes. From a judgment in favor of plaintiff and from an order denying a motion for
p. 66
a new trial, defendant appeals. Transferred from First to Second department.
Affirmed.
Argued before GOODRICH, P. J., and BARTLETT, HATCH, WOODWARD, and HIRSCHBERG, JJ.
Frank Sullivan Smith, for appellant.
Austen G. Fox, for respondent.

The decision of the court of appeals in this case (Cheever v. Railroad Co., 150 N. Y. 59 , 44 N. E. 701 ) settled one question. There is nothing on the face of the notes in suit to charge the transferee thereof with notice of the fact that they had been wrongfully diverted by the. president of the corporation by which they were made, notwithstanding this determination, it was held by the appellate division upon the second appeal that there was evidence which should be submitted to a jury upon the question of the good faith of the transferee (Francis A. Brooks, of Boston) in taking the paper. 28 App. Div. 81 , 50 N. Y. Supp. 1067 . Upon the trial now under review this question of good faith has been resolved by the jury in favor of such transferee. We think the proof is sufficient to sustain the finding of the jury in this respect. In leaving this question to the jury, we cannot perceive that the trial court erred in giving or refusing to give any instruction. Since the review by the appellate division, the answer has been amended so as to allege that the plaintiff was not at the time of the commencement of the suit, and is not now, the owner and1 holder of the promissory notes in controversy. The averment of the complaint in regard to each of these notes is that it was indorsed and delivered by the payee named therein to M. S. Frost & Son, “who delivered the same so indorsed to Francis A. Brooks, who took the same from them before maturity, for value, in good faith, and without notice; and that thereafter the said Francis A. Brooks, for value, transferred and delivered the said note to John Brooks, who thereafter, and before this action, assigned, transferred, and delivered the same to the plaintiff, who is now the holder thereof.” We think that the transfer, assignment, and delivery are sufficiently alleged so as to import a legal title in the plaintiff (Oishei v. Craven [Super. Ct. Buff.] 31 N. Y. Supp. 1021 , by Hatch, J.), and that the evidence in, support of the allegation of the complaint in this respect was so supported by the proof as to justify the court in holding, as matter of law, that the plaintiff could maintain the action. The case is discussed with exceeding elaboration in the briefs of counsel. All the points except those which have now been touched upon appear to have been necessarily involved in the decisions rendered upon the previous appeals. It seems to us that there is no error which affords just ground of complaint to the appellant in the record of the last trial, and that the judgment which was the result of that trial should be allowed to stand. Judgment and order affirmed, with costs. All concur.

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