Wyckoff v. Wilson — 36 N.Y. St. Rep. 35

Majority

p. 35

John N. Wyckoff et al., Resp’ts, v. Lemuel H. Wilson, Impl’d, App’lt.

(New York Common Pleas, General Term,

Filed February 2, 1891.)

Headnote

1. Bills and notes—Rights as between endobsebs.

The payees of a note are presumably the first endorsers thereof, and cannot maintain an action against another endorser without appropriate allegations supported by sufficient proof that defendant was privy to the consideration for which it was given and assumed the responsibility of endorser to tne payees.

3. Same.

The mere fact that defendant on being requested by plaintiffs to pay remained silent and did not dispute his liability, is not sufficient to prove that he had assumed the character of endorser towards them.

Appeal from judgment and order of the general term of the ■city court, affirming a judgment for plaintiffs entered upon a verdict, and also affirming an order denying defendant’s motion for a new trial.

• Benjamin Estes, for resp’ts ; Charles E. Wilson, for app’lt

This action was brought to recover upon a promissory note as follows:

“New York, August 12, 1889.

“ Two months after date I promise to pay to the order of Wyckoff Bros, two hundred dollars at the Sprague National Bank, Brooklyn, value received.

. “(Signed) E. R. Middledrock.”

The note was endorsed by the defendant Wilson. The legal presumption predicated upon the note only is that Wyckoff Bros, were endorsers prior to Wilson, and hence an action by the former against the latter was not maintainable without appropriate allegations in the complaint and sustained by sufficient proof

p. 36

upon the trial that the defendant Wilson was privy to the consideration for which the note was given, and assumed the responsibility of endorser to the payees. See Meyer v. Hibsher, 47 N. Y., 265 ; Phelps v. Vischer, 50 id., 69.

The allegations of the complaint were sufficient for the purpose of charging the defendant Wilson, but the record of this appeal fails to disclose any evidence in support of those allegations. Indeed, the only fact relied upon by the plaintiffs to support the claim that the defendant Wilson had assumed the character of.an endorser towards them was that, in an interview between John N. Wyckoff, one of the plaintiffs, subsequent to the maturity of the note, Wilson remained silent when requestéd to pay, and did not dispute his liability. Silence under some circumstances may be proof of acquiescence and consent, but silence only can never assume the dignity of proof of an antecedent agreement founded upon sufficient consideration by means of which the liability of the person of whom a recovery is sought was created.

We are, therefore, of the opinion that the exceptions of the defendant to the rulings of the trial justice were well taken, and that the judgment and order appealed from should be reversed.

Judgment and order appealed from reversed, and new trial ordered, and costs to abide the event.

Allen, Bischoff and Pryor, JJ., concur.