Bookheim v. Alexander — 46 N.Y. St. Rep. 200

Majority

p. 200

William Bookheim, Resp’t, v. Thomas Alexander, Impl’d, App’lt.

(Supreme Court, General Term, Third Department,

Filed July 2, 1892.)

Headnote

1. Bills and notes—Bona fide holder. .

A note for $100 was transferred to plaintiff before maturity, who paid $20 therefor and gave a credit of $80 for meat which had been bought by the transferer on an agreement to pay cash. Held, that this made the plaintiff a bona fide holder, and that it was not error to exclude evidence as to the equities between such transferer and defendant, who was a prior endorser.

2. Same—-Direction of verdict.

When the plaintiff’s right to recover rests solely on his own testimony, or where his evidence is a necessary element to a recovery, and stands alone, the credit to which he is entitled is a question for the jury, and it is error for the court to refuse to submit such question, and to direct a verdict.

Appeal from a judgment entered upon a verdict by direction of the court at the circuit.

Nathaniel Niles, (Albert Hessberg, of counsel) for appl’t; Henry. E. Stern, (Andrew Hamilton, of counsel), for resp’t.

This action was prosecuted upon a promissory note made by John H. Ruso and Harriet L. Ruso, payable to Thomas Alexander, and by him transferred by endorsement before maturity to John Gr. Myers, who endorsed the same before maturity, and transferred it to the plaintiff.

The action is prosecuted against the makers and first endorser of the note. The answer put in issue all of the allegations of the complaint except the execution and delivery of the note. The proof shows that the defendant Alexander endorsed this note and transferred it to John Cr. Myers, receiving for it at the time ten dollars in money. Myers transferred it to plaintiff for $20 cash, and a credit of $80 for meat which he bought of plaintiff on an agreement to pay cash.

The defendant Alexander testified in his own behalf, under objection of the plaintiff, to the transaction between him and Myers at the time he let Myers have the note, that he was boarding at Myers’ hotel, and wanted money, and got a loan of ten dollars, and left the note with Myers as security, and at the same time wrote his name on the back of the note at Myers’ request; this was before the note became due.

He also testified that he offered to pay Myers the ten dollars he got of him, at the time he let him have the note, and five dollars for the use of it. This evidence was objected >to by the plaintiff and stricken out on his motion, and at the conclusion of

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all of the evidence the trial judge directed a verdict for the plaintiff for the amount of the note and interest, on which judgment was entered.

The defendant insists that the plaintiff was not a bona fide holder of this note for value, and that he therefore took this note Subject to all the equities existing against it in the hands of Myers, and that as between Myers and Alexander there never was a bona fide transfer of the note, but that Myers took it as security for a loan of ten dollars.

Whether this contention is sound depends upon the transaction between the plaintiff and Myers. The legal presumption arising from the transfer is that he took it before maturity and for value. In Merchants & Traders’ Bank v. Crow et al., 60 N. Y., 87 , it was held that the holder of a negotiable promissory note is presumed to be a bona fide holder for value, without notice of any defense to the instrument, and proof of want or failure of consideration between the original parties did not change that presumption, or put the holder to proof of the consideration upon which he received the paper. In the same case it was held that when the note was taken by the holder before maturity and paid for in part in cash, and the balance in payment of a past due note of the endorser, the holder became a bona fide holder for value; citing Brown v. Leavitt, 31 N. Y., 113 ; Pratt v. Coman, 37 id., 440; Chrysler v. Renois,43 id, 209: Weaver v. Barden, 49 id., 286, and holds that a verdict for the plaintiff was properly directed by the court. The points discussed and disposed of in the above cases are applicable to the case at bar. The plaintiff received the note before maturity. He paid cash at the time in part and turned in a cash obligation of the endorser in part payment for the balance.

The plaintiff within these authorities being a bona fide holder of this note, it was not error to exclude the testimony of the defendant, Alexander, as to the equities existing between him and Myers, his endorsee.

By endorsing the note and putting it in circulation a subsequent holder became entitled to rely implicitly upon such endorsement, and he is estopped from denying the validity of that endorsement as against an innocent holder of the note, without notice of any equities in favor of the endorser.

But it is insisted on the part of the defendant that all of these facts depend upon the testimony of the plaintiff and that as there was no other witness to support the plaintiff’s case than himself, the case should for that reason alone have been submitted to the jury, and the refusal of the learned judge to submit it was for that reason error for which the judgment should be set aside.

With the testimony of the defendant out of this case its determination must to a great extent depend upon the credence that attaches to the testimony of the plaintiff. His testimony, with the corroboration only of the possession of the note, and the endorsement of the defendant, established Ms right of recovery if that right is established in this action.

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It has been repeatedly held that when the plaintiff’s right to recover rests solely on his testimony or when his evidence is a necessary element to a recovery and stands alone, the credit to which he is entitled is a question for the jury. In Joy v. Diefendorf, 40 St. Rep., 491 , the principal defense relied upon to defeat a recovery was that plaintiff was not a bona fide holder of the noté, and the only witness on the part of the plaintiff to establish that proposition was the plaintiff’s own evidence, and a verdict for the plaintiff under the direction of the court was set aside and judgment entered thereon reversed on the ground that the question should have been submitted to the jury.

To the same effect is the case of Vosburgh v. Diefendorf, 119 N. Y., 357 ; 29 St. Rep., 448 ; Canajoharie Nat. Bank v. Diefendorf 123 N. Y., 191 ; 33 St. Rep., 389 . We think this case comes within the principle of those decisions and that this case under proper instructions should have been submitted to the jury, and that the refusal of the learned judge to submit it on the request of the defendant’s counsel was error.

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

Putnam, J., concurs ; Herrick, J., not acting.