Queens County Bank v. Leavitt — 31 N.Y. St. Rep. 195

Majority

p. 195

The Queens County Bank, Resp’t, v. Eliza M. Leavitt, App’lt.

(Supreme Court, General Term, Second Department,

Filed May 12, 1890.)

Headnote

Husband and wife—Bills and notes.

Defendant executed a promissory note- to the order of her husband, which was made solely for his accommodation, and was used by him to take up a former note held by plaintiff. Held, that the debt of the husband to the bank was a sufficient consideration to support the transfer of the note; that there was no contract between defendant and her husband; within the meaning of chapter_381, Laws.of l_884,,andjh_at_defe‘ndanf_wasj liable on the note.

p. 196

Appeal from judgment in favor of plaintiff entered upon verdict directed by the court.

O. A. S. Van Nostrand, for app’lt; Nathan Bijur, for resp’t.

This action was brought upon a promissory note, of which the following is a copy :

u $2,800. Flushing, November 5, 1888.

“ Four months after date I promise to pay to the order of Rufus W. Leavitt twenty-eight hundred dollars, at the Queens County Bank, Long Island City, value received.

“ In consideration of one dollar to me in hand paid, I hereby bind my separate estate for payment of the above amount

“ Eliza M. Leavitt.”

At the time, of the execution of this note, the maker was a married woman, and the wife of the payee, Rufus W. Leavitt, and the note was made without consideration as between the husband and wife, and was made for the accommodation of the husband, and he endorsed the same, and delivered it to the Queens County Bank for the purpose of taking up another note which the bank held against him, which was also made by his wife.

Upon the conclusion of the testimony at the trial the court ■directed a verdict for the plaintiff, and the defendant has appealed from the judgment entered thereon.

We can discover no error. The note in suit was made with full knowledge of the use to which it was to be appropriated, and there is no claim interposed of any diversion of the paper. The note was made by the wife for the accommodation of her husband, and the existence of the debt from the husband to the bank was a sufficient consideration between them to sustain the transfer •of the note to the bank. Schepp v. Carpenter, 51 N. Y., 602 .

Being an accommodation note, it did not inure as a contract between them, because it had no inception until it was discounted or taken by the bank in place of the old note. Bowery National Bank v. Sniffen, 27 N. Y. State Rep., 10.

There never was any intention to create an obligation of the wife to the husband by the execution of the note in question, and the paper had no inception as a contract until the delivery of the same to the bank in payment of the old note. These remarks are made to show that chap. 381 of the Laws of 1884, respecting the capacity of married women to make contracts, and the reservation and proviso contained in the second section of that act can have no application to this action.

It was the evident intention of the defendant to become surety for her husband, and she had capacity and competency to enter into such obligations previous to the law of 1884, and her obliga-1 tian thus assumed is valid and binding. Corn Exchange Bank v. Babcock, 42 N. Y., 613 .

We find no exceptions well taken, and no error,1

The judgment should be affirmed, with costs.,/

Barnard, P. J., and Pratt, J., concur. >