Meise v. Doscher — 52 N.Y. St. Rep. 771

Majority

p. 771

Louise Meise, Resp't, v. John H. Doscher et al., App'lts.

(Supreme Court, General Term, First Department,

Filed April 14, 1893.)

Headnote

1. Severance—Judgment for taut admitted.

In an action-npon promissory notes, the answer admitted the making thereof, but alleged that they were given for a greater amount than was due, that payments had been made, and that the maker was only indebted to an amount specified. Held, that under this condition of the pleadings the court was justified in directing a severance and entry of judgment for the amount admitted to be due.

2. Bills and notes—Indorser.

In the absence of allegations or evidence explaining the circumstances of the indorsement, a recovery cannot be had by the payee against the indorser, as the presumption in such case is that the latter intended to be liable subsequent to the payee.

Appeal from a judgment upon an application under and pursuant to the provisions of § 511 of the Code of Civil Procedure.

J. H. Hull, for app'lts; J. G. Flammer, for resp't.

This action was brought to recover the defendant Doscher as maker, and the defendant Newman as indorser, of two promissory notes. The defendants, answering, admitted the making of the notes by Doscher, and their indorsement by Newman. It then alleged that Doscher, being indebted'to the plaintiff in the sum of $2,386.05, was induced to sign and deliver the notes in question for $3,000 ; and then, as a further defense, that Doscher had paid to the plaintiff upon the notes $1,922.86, and that he is now indebted to her thereon in the sum of $435.70 only. Under this condition of the pleadings, the court was justified in directing the judgment appealed from, as against Doscher. Section 511 of the Code provides that where “the answer.of the defendant expressly, or by not denying, admits a part of the plaintiff's claim to be just, the court, upon the plaintiff’s motion, may, in its discretion, order that the action be severed ; that a judgment be entered for the plaintiff for the part so admitted;

p. 772

and, if the plaintiff so elects, that the action be continued, with like effect, as to the subsequent proceedings, as if it had been originally brought for the remainder of the claim.” Under the pleadings, therefore, the maker being indebted upon the notes in the amount stated in the answer, the indorser would ordinarily be liable to the plaintiff therefor; and under § 511, above referred to, judgment might be directed against both the maker and the indorser. „

But, in the case at bar, it appears that the plaintiff was the payee of the note, and the presumption of law would be, without some allegation or evidence explaining the circumstances of the indorsement, that the indorser placed his name upon the paper intending to be liable thereon subsequent to the payee. Therefore, in the case at bar, there being no allegation in the complaint that the indorsement of the notes by the indorser was intended to give credit therewith to the payee, no liability against the indorser appeared upon the face of the pleadings. The judgment and order should be reversed as to the defendant Newman, and affirmed as to the defendant Doscher, without costs to either party.

. Yan Brunt, P. J., O’Brien and Ingraham, JJ., concur.