Kellow v. McCaw — 38 N.Y. St. Rep. 480

Majority

p. 480

Joseph Kellow et al., App’lts, v. William J. McCaw et al. Resp’ts.

(City Court of Brooklyn, General Term,

Filed April 27, 1891.)

Headnote

Appeal—Verdict.

In an action on a promissory note, the defense was that the note was an accommodation note, which plaintiffs had agreed to have discounted and give the proceeds to the maker. It appeared that plaintiffs were first informed that it was business paper, but afterwards told that it was accommodation paper. The judge submitted the question as to whether the latter notice was given before or after plaintiffs had the note discounted at their bank as the only question in dispute. No exception was taken to the charge. Held, that as there was evidence to support a verdict for defendants, it would not be disturbed.

Appeal from judgment in favor of defendants, entered on verdict, and from order denying motion for a new trial.

George A. Mott, for app’lts; Charles Bradshaw, for resp’ts.

Plaintiffs brought this action to recover the amount of a certain promissory note made by the defendant McCaw', to the order of, and endorsed by, the defendant Coombs.

The defense was that the note was an accommodation note, which plaintiffs had agreed to discount or procure to be discounted, and give the proceeds to the maker, which they have failed to do, and that plaintiffs had never parted with value for the note, and were not the legal owners and holders thereof.

It appeared from the evidence on the trial that the defendant Coombs was indebted to the defendant McCaw in the sum of $125 (the amount of the note in suit), and that McCaw gave the note to Coombs to get discounted and return to him the proceeds, Coombs to pay the note at its maturity. It further appeared that Coombs was also indebted to plaintiffs in about one hundred and twenty-eight dollars,and that he applied to them to discount the note. Plaintiffs were in the first instance informed by McCaw that the note was a good business note. McCaw, however, subsequently sent word to plaintiffs that the note was an accommodation note. Plaintiffs had the note discounted by their bank, and credited Coombs to the amount thereof on his account with them. The only question in dispute was as to whether plaintiffs were, notified that the note was accommodation paper before they procured it to be discounted. Counsel on both sides admitted, at the close of the evidence, that this was the only question left for the jury to determine. The learned trial judge accordingly submitted this question to the jury, charging them that if McCaw informed plaintiffs that the note was without consideration before they had put it to

p. 481

the credit of Coombs, plaintiffs could not recover, but that if such notice was not until after plaintiffs had credited the account of Coombs, the verdict must be in favor of the plaintiffs. Ho exception was taken to this disposition of the case by either counsel. The jury have found a verdict for the defendants, and there is evidence to sustain such finding. There is accordingly nothing left for us to review on this appeal.

The judgment and order denying motion for a new trial must be affirmed, with costs.

Van Wyck, J., concurs.