National Exchange Bank v. McFarlan — 36 N.Y. St. Rep. 703

Majority

p. 703

The National Exchange Bank of Albany, App’lt, v. John McFarlan et al., Resp’ts.

(Supreme Court, General Term, Third Department,

Filed February 18, 1891.)

Headnote

1. Trial—Order eor separate.

An order, under Code Civil Procedure, § 967, directing a separate trial between the plaintiff and one or more defendants, is a discretionary one.

2. Same.

Where the action was against endorsers of a note, and each claimed that his endorsement was a forgery, and it appeared that many similar notes existed, and that upon a trial had upon such a note, evidence was given relative to the signature of one endorser which was not competent against the other, and which evidence counsel stated he believed had prejudiced the case of the other endorser, Held, that an order granting a separate trial to each, as between himself and the plaintiff, would not be disturbed.

p. 704

Appeal from an order of the Montgomery special term directing that each defendant have a separate trial of the issues raised by the pleadings between him and the plaintiff.

C. J. Buchanan, for app’lt; M Countryman, for resp’ts.

The action is upon a promissory note made by-Daniel Carmichael, and the defendants are sought to be charged as endorsers. Bach defendant denies making the endorsement. The question of fact is whether the alleged endorsements are forged. The motion for a separate trial was granted upon the motion of .the defendant McBarlan and upon affidavits showing that there are many notes similar to the note in suit; that upon a, trial already had upon one of these notes to which the defendants interposed the like answers, much evidence was offered and received for the purpose of showing the genuineness of the endorsement of the defendant Carmichael which was not admissible against the defendant McBarlan, but which the defendant and his counsel believe tended to prejudice the case of McBarlan in the minds of the jury. In this case the same evidence will probably be offered against the defendant Carmichael and the defendant McBarlan will, it is -believed by his counsel, be unjustly prejudiced by it.

The order is a discretionary one. Section 967, Code Civ. Pro., provides that, “ a separate trial between the plaintiff and one or more defendants * * * may be directed by the court in its discretion.’’ See also § 455. The learned justice who granted this order presided upon the trial upon the other similar note. He has presumably exercised his discretion-in the light of the demonstration had before him of the danger to which McBarlan’s rights-are exposed by the failure of the jury to discriminate as they ought between the evidence which affects him and that which affects Carmichael. We can see from the affidavits that such danger is probable. Under the circumstances we can hardly doubt that the order is right

Order affirmed, with ten dollars costs and printing disbursements.

Mayham, J., concurs; Learned, P. J., takes no part.