Uchtmann v. Tonyes — 46 N.Y. St. Rep. 364

Majority

p. 364

Egbert Uchtmann, App’lt, v. Annie M. Tonyes, Impl’d, Resp’t.

(Supreme Court, General Term, Second Department,

Filed May 9, 1892.)

Headnote

Bills and notes—Fraud—Rights oe endorsee.

In an action upon a promissory note against an accommodation endorser who claimed that her endorsement was procured by fraud, where there was evidence tending to show that plaintiff took the note for value before maturity and without notice of any defense, and also that the transfer was for a precedent debt, the court charged that if plaintiff received the note on a precedent debt he could recover if the payee could, and that if he took before maturity and for value and defendant endorsed the same he would be in a position to recover even if the payee obtained such endorsement by fraud. Held, that such charge was correct*

p. 365

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

Action upon a promissory note made by Louis Tonyes, a son of defendant, for $2,400 upon which defendant’s name appears as endorser.

C. J.G. Hall (U. W. Tompkins, of counsel), for app’lt; Jacob Brenner (Chas. J. Patterson, of counsel), for resp’t.

On the 26th of April, 1890, Louis Tonyes made his promissory note payable to the order of the Abbott Brewing Company for $2,400, payable in three months after its date. The complaint avers that Annie M. Tonyes, the wife of the maker of the note, endorsed it before its delivery, in order to increase the security of the brewing company. Annie M. Tonyes, denied this and claims that the endorsement was obtained by fraud upon the part of the brewing company committed through its agent, one Edward Krieger. It appeared by the evidence that one Eagan owned a saloon ; that the brewing company had a" mortgage on it of a little over $2,200 ; that Eagan sold the saloon to Louis Tonyes for $3,000. That Tonyes gave a mortgage on the same to the brewing company for $2,400, being the Eagan debt; that Tonyes gave a note for $600 endorsed by his wife, which went to Eagan. The notes were both obtained by Krieger, the agent of the brewing company. The brewing company transferred the note to plaintiff and there was proof tending to show that it was transferred for value and without notice of any defense, and also that the transfer was made for a precedent debt Tonyes paid the $600 note to Eagan. Annie M. Tonyes testified to the effect that she did not endorse the $2,400, but did the $600-note, and upon the distinct promise that the $2,400 mortgage from Eagan could stand. Krieger admits a promise to let the Eagan security stand, but that it was upon the condition that Mrs. Tonyes endorsed the note. Mrs. Tonyes could not read English, and signed the $600 by a cross. The $2,400 is apparently signed by a cross and witnessed by Krieger; and her husband, Louis. Tonyes, testifies that there was only one paper signed by him or his wife, which was the $600 note. The defendant is supported also by the "witness Kennedy, who stated the agreement to be that. Tonyes was to pay Eagan “and leave the rest stand.” The jury found on this conflicting evidence that Mrs. Tonyes did not endorse the note in question for $2,400. This verdict will stand, unless there was some error committed upon the trial. The court charged the jury that if the plaintiff received the note on a precedent debt, he could recover if the brewing company could. That the plaintiff would be in a position to recover if he took before maturity and for value, and if the defendant, Annie M. Tonyes, endorsed the same, even if the brewing company obtained the endorsement by fraud. This charge covered the entire case, and was in accordance with the law which governed it.

The judgment and order denying'new trial should be affirmed, with costs.

Dyioun, J., concurs; Pratt, J., not sitting.