Trunk v. Grier — 66 N.Y.S. 382

Majority

p. 382

TRUNK v. GRIER.

(Supreme Court, Trial Term, New York County.

October, 1900.)

Headnote

Lost Note—Action—Bond—Approval—Right op Recovery.

Under Code, § 1917, requiring the plaintiff in an action on a lost note, as a condition to recover, to execute a written undertaking, approved by the judge, to indemnify the adverse party against any claim,, costs, or expenses on account of such note, the payee of a lost note, after filing such a bond at the trial, and its approval by the judge, was entitled to judgment for the amount due on the note.

Action by Lawrence Trunk against William A. M. Grier on a lost note. Judgment for plaintiff.

Otis & Pressinger, for plaintiff.

Hastings & Gleason, for defendant.

In New York, previous to the Revised Statutes,, no action could be maintaind at law upon a lost hill or note which was negotiable if it had been indorsed . or otherwise transferred, whether before or after it was payable. Cow. Treat. (Kingsley’s Ed.) § 400, and cases cited. The note in suit was payable to the order of the plaintiff, and, for all that appears, was never indorsed by him, so that it could not be negotiated according to the law merchant. The action is, therefore, one which could be maintained at common law. See cases cited under section 1917, Bliss’ Code. The statutory provisions now contained in section 1917 of the Code require the plaintiff, as a condition to recovery, to give a written undertaking in a sum fixed by the judge or referee to indemnify the adverse party against any claim by any other person on account of the note or bill, and against all costs or expenses by reason of such a claim. It is apparent, therefore, that the bond is to be given at the trial (Brookman v. Metcalf, 4 Rob. [N. Y.] 568), to be there approved of by the judge or referee. Such a bond has been given, the judge has approved of it, and the plaintiff is entitled to judgment for the amount due, $638.78. A decision in accordance herewith has been signed.