Mitchell, Vance & Co. v. Spaulding — 11 N.Y. St. Rep. 283

Majority

p. 283

Mitchell, Vance & Co., Appl'ts, v. James J. Spaulding, Impleaded, etc., Resp’ts.

(City Court of New York, General Term,

Filed October, 1887.)

Headnote

Promissory note—Liability or indorser.

One, Rosanna Spaulding, made a promissory note payable to the order of the plaintiffs. James J. Spaulding, the defendant indorsed it. The note was afterwards delivered to the payees (the plaintiffs), who sued James J. Spaulding, as indorser thereon. Held, that as the-action was brought by the payees of the note, they were presumably the first indorsers thereon, and could maintain no action against James J. Spaulding, without alleging and proving facts sufficient to overcome the presumption and charge him as first indorser.

Appeal from judgment entered by direction of the trial judge dismissing the plaintiff’s complaint.

Ten Eyck & Remington, for app’lts; Alex, Thain, for resp’ts.

—The action is against the defendant as indorser of a promissory note made by Rosanna Spaulding to the order of Mitchell, Vance & Co., the plaintiffs. The action is by the payees, who were presumably the first indorsers on the note. There is nothing alleged in the complaint to bring the case within the exceptional rule laid down in Moore v. Cross ( 19 N. Y., 227 ). The evidence fails to show that the defendant indorsed the note with the intention of becoming liable thereon to the payees (the plaintiffs), and this intention cannot be inferred from anything found in the pleadings or proofs, particularly in opposition to the legal presumption created by the peculiar phraseology of the note, which has not been overcome. The complaint might have been dismissed for want of the allegations necessary to charge the defendant. MacTeague v. James, 2 City Ct. Rep., 52; Code, § 488, subd. 8, § 499.

It follows that the judgment appealed from, must be affirmed, with costs.

Nehrbas, J., concurs.