Grabosski v. Gewerz — 44 N.Y. St. Rep. 127

Majority

p. 127

Max Grabosski, Resp’t, v. Lewis Gewerz, App’lt.

(New York Common Pleas, General Term,

Filed February 1, 1892.)

Headnote

1. Bills and notes—Title of plaintiff.

Mere possession of a note payable to the order of a person other than the holder, and unendorsed, does not entitle the holder to recover thereon, but, on appeal, the pleadings in the court below having been oral, and it being impossible to determine from the record the precise extent of the allegations of the complaint, Held, that the institution and prosecution of the suit implied an allegation of title in the plaintiff, and it nowhere appearing that such an allegation was controverted, it must be assumed to have been admitted.

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3. Same—Burder of proof.

In an action on a promissory note, the defense was want of consideration, and the execution not denied. Held, that the affirmative was with the defense to show a want of consideration.

Appeal from a judgment for plaintiff rendered in the district court of the city of New York for the third judicial district.

A. & L. Levy, for app'It; John Fennel, for resp't.

The note in suit was payable “ to the order ” of Baker Union No. 31 of New York, therefore negotiable, Lawson’s Rights, Remedies & Practice, vol. 4, § 1455, p. 2586; Parsons on. Notes & Bills, vol. 1, p. 13, etc., and it imported a consideration. Goshen & Minisink Turnpike Road v. Hurtin, 9 Johns., 217 ; Kinsman v. Birdsall, 2 E. D. Smith, 395. The defenses were limited to want of consideration and procurement of the note by duress, neither of which disputed the making and delivery of the note; and before the burden of establishing the fact of consideration by a preponderance of the evidence could be imposed upon the plaintiff, Bruyn v. Russell, 38 St. Rep., 50 , it was requisite that the defendant should in the first place impeach the presumption of consideration by evidence from which the want of consideration was made to appear, or could be inferred. The trial justice, therefore, properly ruled that the affirmative side of the case was with the defense.

It is urged by counsel for appellant, as ground for reversal, that the evidence fails to show plaintiff’s ownership of the note in suit, and that the presumption of title and ownership usually arising from the fact of possession does not apply, since the note was payable by its terms to a person or persons other than the plaintiff, and was not endorsed. Had the defense, instead of being affirmative, been a denial, the absence of endorsement would have required plaintiff to show a devolution of the payee’s right to recover upon him by assignment, oral or in writing, for it has been expressly held by the court of appeals that mere possession of a note payable to the order of a person other than the holder, and unendorsed, does not entitle the holder to payment, Doubleday v. Kress, 50 N. Y., 410 , and hence not to the maintenance of an action to recover thereon.

The pleadings in the court below having been oral, we cannot, from the record, determine the precise extent of the allegations of the complaint, but the institution of suit and its prosecution imply an allegation of title to the note in the plaintiff, and as it nowhere appears that such an allegation was controverted, we must assume that it was admitted. • The proceedings upon the trial, as they are presented to us by the justice’s return, are entirely consistent with such an admission. The absence of the endorsement of the payee, however, had the effect of subjecting the note in the hands of the plaintiff to all the defenses which might have prevailed between the original parties thereto. Goshen National Bank v. Bingham, 118 N. Y., 349 ; 28 St. Rep., 702 , and so it was proper for the trial justice to consider them and to receive evidence thereof.

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No other evidence was offered in support of the defenses than the testimony of the defendant, which, though it had remained wholly uncontradicted, was subject to discredit as that of a party in interest. From this it appeared that defendant was engaged in business as a baker, that he employed four or five journeymen ; that on the day of the making and delivery of the note he was without help; that he voluntarily applied to the Bakers’ Union, No. 31, to be supplied with journeymen; that lie was informed by the officers, or members of the union, that unless the note in suit was given his request would not be complied with, .and that to obtain the required assistance in his business he .gave the note. Do these facts constitute duress? ,

As well could it be urged that any person engaged in the business of supplying servants is guilty of the same offense if he refuses to make the supply except upon an agreement for compensation for his services. If it was intended to prove that the members of the union had unlawfully conspired to prevent the further conduct of defendant’s business and to induce journeymen to abstain from entering his employ, and that the note was .given and accepted with the understanding, on both sides, that further resistance to the prosecution of defendant’s business should thereupon be withdrawn, the facts shown do not warrant such an inference and the defendant signally failed in this respect. It was not an apparent duty of the union to supply defendant with journeymen bakers, and their refusal to do so, except upon an agreement for compensation, presents no element of duress.

Upon cross-examination, however, defendant was forced to admit that at the time of giving the note in suit he was aware of the fact that, as a consideration therefor, he became entitled to procure from the union certain labels issued by it for use in the business of bakers at prescribed rates. Counsel for the defense did not apparently deem a disclosure of the purport of these labels necessary, and the trial court was left wholly to conjecture in this respect For the plaintiff it appeared, from his own testimony and "that of a witness, Davis, that defendant voluntarily applied to the union to purchase its labels, and that the note in suit was exacted and given as the consideration of an agreement on the part of the union thereafter to supply the defendant with- the labels upon payment by him of. the rates prescribed therefor, and that he was supplied with such labels upon the further payment often dollars, .and furnished with journeymen. Was not the agreement for the supply of labels evidence of some consideration for the note ? It will hardly be seriously contended that it was not. With the adequacy or inadequacy of the consideration the court cannot, in the absence of illegality, fraud or mistake, have any concern. Of that the contracting party is the better judge, and if he chooses to enter into a .contract upon a consideration' which, at the time, lie deems sufficiently adequate, the courts cannot relieve him or make a new contract for him if he subsequently repents of his bargain.

We think not only that the preponderance of the evidence sus

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tained the claim of consideration, but that on the defendant’s testimony alone, though it had remained wholly unchallenged, a judgment for plaintiff 'would have had to be sustained.

Judgment affirmed, with costs.

Bookstayer, J., concurs.