Harlem River Bank v. Meyer — 42 N.Y. St. Rep. 465

Majority

p. 465

The Harlem River Bank, Resp’t, v. Carrie Meyer, Impl’d, App’lt.

(New York Common Pleas,

General Term,

Filed January 4, 1892.)

Headnote

Married women—Accommodation endorsement for husband.

An action cannot be maintained upon the accommodation endorsement by a married woman of her husband’s demand note by one who has received the same from the husband for his antecedent debt without giving up any security or any legal rights. In such case there is no extension of time.

Appeal by defendant Carrie Meyer from the judgment of the general term of the city court affirming a judgment entered in favor of plaintiff. The action was upon a promissory note as follows, the maker and endorser being husband and wife:

“ $1,250. “ Hew York, July 1, 1890.

“ On demand I promise to pay to the order of myself twelve hundred and fifty dollars at Harlem Eiver Bank. Value received.

“Albert A. Meyer.”

The note was endorsed: “ Albert A. Meyer,

“ Carrie Meyer,

“ waiving demand and protest”

M. H. Regenshurger and Stephen H. Olin, for app’lt; Donald McLean, for resp’t

The note which is sued upon was drawn by the husband of appellant to his own order, endorsed by him and after-wards by her without consideration, and was then delivered by him to the plaintiff, the Harlem Eiver Bank, to which he was then indebted in the sum of about $1,200. He says he gave it to the bank for that indebtedness; to cover the balance he owed the bank.

As Mrs. Meyer received no consideration for her endorsement, and as no agreement or arrangement between her and her husband respecting the use of the note was valid or enforceable, Laws of 1884, chap. 381; Hendricks v. Isaacs, 117 N. Y., 411 ; 27 St. Rep., 449 , her contract as endorser must have its incipiency with some third person for a valuable consideration before it can be enforced against her. If the bank had discounted the note for her husband, and he had received the proceeds, she might have been liable as contracting directly with the bank, Bowery Nat. Bank v. Sniffen, 54 Hun, 394 ; 27 St. Rep., 10 , and so if the bank, on the faith of her endorsement, had released the indebtedness of the husband, or agreed to receive the note in discharge of such indebtedness, or had parted with some value for it, she might have been liable; but merely receiving it for an antecedent debt, as in this case, without giving up any security, nor any legal rights, nor giving an extension of time, does not constitute the bank a holder for value. Fisher v. Sharpe, 5 Daly, 214 , and cases cited ; Comstock v. Hier, 73 N. Y., 273 . This note was payable on demand, so there is no presumption that in taking it for the antecedent

p. 466

debt the right to collect such debt was suspended for a single day; and there was no proof of an agreement on the part of the bank to release or discharge the debt, or that any security was parted with. As the endorsement of Mrs. Meyer was enforceable only by virtue of a contract with the bank, or with some person other than her husband, and no such contract is shown, nor any consideration for the transfer of the note, it follows that the action cannot be maintained. The cases in which accommodation •endorsers have been held liable to holders taking the paper for •antecedent debts proceed upon the enforcement of the agreement between the endorser and the maker for the use of the endorsement by the latter for his own benefit; but, as we have seen, no su’ch arrangement or agreement between husband and wife is valid and enforceable; the person receiving the wife’s note or endorsement for an antecedent debt of the husband being bound to show some original agreement between the wife and himself, or some •other third person, founded upon a valuable consideration.

Judgment reversed, and a new trial ordered, with costs to abide the event.

Bischoff, J., concurs.