Munson v. Taylor — 12 N.Y. St. Rep. 755

Majority

p. 755

John A. Munson, App’lt, v. George B. Taylor, Resp’t.

(Supreme Court, General Term, Fifth Department,

Filed January, 1888.)

Headnote

1. Promissory notes—Given eor patent right—Indorsement required BY LAWS 1877, CHAP. 65, NOT A PART OE THE NOTE.

It is provided by Laws 1877, chapter 65, that any note the consideration for which consists wholly or in .part of a patent right, shall have legibly written or printed on its face above the signature the words: “Given for a patent right.” Held, that the indorsement required by the statute was no part of the note, and that the words might be written upon its face after its execution.

2, Appeal erom judgment—What questions not considered on.

Upon an appeal from a judgment rendered in favor of the plaintiff in an action on a note, which was claimed by the defendant to have been given for a patent right, and which he claimed to be void because not bearing on its face the indorsement required by statute. Held, that it not being disclosed by the record that the words mentioned in the statute were not written or printed on the face of the note, the appellate court would not be justified in considering the question.

Appeal from a judgment entered upon the report of a referee in an action upon a promissory note.

E. J. Taylor, for app’lt; George O. Baker, for resp’t.

The evidence given on the trial of the issues is not, nor any part thereof, contained in the appeal book. The only inquiry on .this appeal is, are the legal conclusions of the referee supported by the facts found. The facts reported are within the issues framed by the pleadings, and are, in substance, that the defendant made and delivered to one Nelson Kent his negotiable promissory note, dated July

p. 756

1, 1885, for the sum. of $225, payable nine months after date, at the Exchange Bank, of Lockport, a copy of the note being set forth in the report in full; that before the maturity of the note the plaintiff purchased the same of the payee, and there was allowed in part payment of the purchase price the amount of a precedent debt which the payee owed the plaintiff, and the balance was paid in cash to the payee at the time of the purchase; that the consideration of the note was the purchase price agreed upon by the parties to the note, for the sale and transfer of a patent right from the maker to the payee; that the transaction for the sale and transfer of the patent right and taking the said note in payment thereof, was in all respects fairly and honestly conducted, without fraud, deceit or misrepresentation on the part of either party, and that the sale and conveyance of said right and interest in the letters patent constituted a good and valuable consideration for the said promissory note; that at the time the plaintiff purchased the said note he knew that the same was originally given for a patent right. As a conclusion of law, the referee held that the plaintiff was entitled to judgment upon the note, for the face thereof and interest thereon.

The appellant contends that the note is void, for the reason that there is not written or printed on the face of the note the words, “given for a patent right,” as provided by chapter 65, Laws lSYL By the second section of the act there is a further provision, that if any person, “shall take, sell or transfer, any promissory note, not having such indorsement, knowing the consideration of such note to be for the sale of an interest in a patent right, he shall be deemed guilty of a misdemeanor.”

We do not need in disposing of this appeal, to give any interpretation to the said act, as to its general purpose, oías to the meaning and effect of any particular clause thereof; nor determine the persons or parties who may come within its provisions and be affected thereby, for the reason, that the point made by the appellant, and on which he stands as the sole ground for reversal of the judgment, is not presented by the record. It is not disclosed by the record that the words mentioned in the statute were not written or printed on the face of the note. The body of the note is set forth in the report. The referee has not found, that the words required by the statute do not appear on the face of the note, nor was he requested, by the defendant to find, that such was not the fact. Nor does the answer set up as a defense, that the words were not written or printed on the face of the note. We should not be justified in considering the question, as no issue was presented relating thereto, and we cannot say, by the record, that the referee’s

p. 757

attention, was directed to the point now made. Other defenses were pleaded, which were passed upon by the referee.

The indorsement required by the statute is no part of the note; the words may be written upon the face of the note after its execution, and in practice would ordinarily be done after the form and terms of the note were prepared. The question presented is new, so far as I can ascertain from an examination of the case.

In Spring v. Spring, a special term case, it was held, that in an action by the payee of a note against the maker, the -consideration of the note being a sale of a patent right, that the omission to write or print the words of the statute, ] on the face of the note, rendered the same void as between! the maker and the payee. 1

This court had up for consideration the validity of the act j in Herdic v. Roessler ( 39 Hun, 198 ), but not the question] now presented by the appellant.

Judgment affirmed.

All concur.