Wyckoff v. Wilson — 37 N.Y. St. Rep. 751

Majority

p. 751

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

(New York Common Pleas, General Term,

Filed April 6, 1891.)

Headnote

Appeal—Leave to eo to court oe appeals.

In an action on a promissory note, brought by the payees against the endorser, where the evidence was conflicting as to whether defendant endorsed to enable the maker to obtain credit with plaintiffs, the court charged that if plaintiffs took the note in reliance on his endorsement he was liable, and that if the jury believed plaintiff’s testimony plaintiffs were entitled to a verdict. Held, that the case, for this error, required a reversal, and that leave to appeal to the court of appeals should, therefore, be denied.

Motion for leave to appeal to the court of appeals.

Benjamin Estes, for motion; Charles E. Wilson, opposed.

It is probable that if I had taken part in the decision of this appeal, I would have expressed the opinion that the evidence in the case supported the plaintiffs’ allegation that the endorser Wilson, who is sued here with Middlebrook, the maker of the note, made his endorsement for the purpose of giving Middlebrook credit with the plaintiffs. When the note was brought to him by Middlebrook to endorse, he saw that it was payable to the plaintiffs and was not yet endorsed by them. He admits that he endorsed for Middlebrook’s accommodation and to enable him to obtain credit with some one, but insinuates that he supposed the plaintiffs were also to be accommodation endorsers with him. The falsity of this suggestion, and of his denial that he knew that the note with his endorsement was to be given to the plaintiffs by Middlebrook, is apparent from the fact that he-had, two weeks before, written a letter to plaintiffs recommending Middlebrook, who was then negotiating for the purchase of plaintiffs’ business. He swears that he did not know of such negotiations until afterwards; but the jury might consider the probability as to whether he did or not. Middlebrook was an old friend of his; when he wrote the letter of recommendation for him to the plaintiffs he “ supposed he was going there in employment,” but afterwards says, “I thought he was going to change his business. I did not know he was going out of business.” Two Weeks afterwards Middleboolc appears with a note for $200 drawn to plaintiffs’ order and asks him to endorse it, and never stated the object for which he wished his endorsement. It would be difficult to find a jury to credit such a statement. But. what is to be said of it when he goes on to swear that he had a

p. 752

distinct understanding with Middlebrook that he was to be “a second endorser?” And yet it appears that after the note was protested and the plaintiff J. N. Wyckoff told him they would look to him for payment, he did not mention this understanding nor deny his liability, but only said that he had directions from Middlebrook not to pay it Upon all the evidence it was a question for the jury.

But the general term of this court could not do otherwise than reverse the judgment and order a new trial for wrong instructions to the jury. The trial court charged that if plaintiffs took the note in reliance on Wilson’s endorsement, he was liable; and that if the jury believed the testimony of plaintiff Wyckoff, the plaintiff was entitled to a verdict. The defendants duly excepted. The jury should have been instructed that the question for them to determine was whether' Wilson endorsed the note for the purpose of procuring for the maker a credit with the plaintiffs and whether the plaintiffs took the note in payment of part of the purchase-price of property sold to Middlebrook after and in consideration of such endorsement. If they found in the affirmative, plaintiffs would be entitled to a verdict; otherwise not.

The case requiring the judgment rendered by our general term, the motion for leave to appeal to the court of appeals must be denied, with ten dollars costs.

Pryor, J., concurs.