Mechanics & Traders' Bank v. Livingston

The action is by the bank on a promissory note made by defendants to the order of Haas & Pohalski, and by them indorsed and delivered to the bank. The alleged defense of defendants, the makers, is that the note was given to Haas & Pohalski for their accommodation and without consideration, and that Haas & Pohalski delivered this note, together with twenty-six other promissory notes, aggregating with this one $6,024.77, to the bank as collateral security for the páyment of a note for $3,000- made by them to order of, and delivered to the bank at the same time for full Value, and that this $3,000 note has been fully paid by collection by the bank of over $3,000 on the other twenty-six notes, given as security as aforesaid. The record shows that the uncontradicted testimony of defendants’ witness Byttenberg is that “ At the time the bank made the loan of $3,000 there was a list of notes which were given as collateral for this loan. I took the notes contained in this list along with me, with the $3,000 demand notes, to the bank. I gave $3,000 as a demand note to the bank, subject to the bank’s order.

The other notes mentioned in the list, there were about twenty-six of them, were not discounted, and were given as collateral security for the $3,000 loan,-made by the bank to Haas & Pohalski on the demand note.” As this witness was proving payment of the other twenty-six collateral notes, the plaintiff admitted as follows: “Plaintiff admits that about $3,000 of those collateral notes have been paid,” and thereupon the list of these twenty-seven notes, including the one in suit, was marked in evidence. Defendant’s exhibit 1. This uncontradicted proof made out a complete defense under the law of this state, provided that the defendants were accommodation makers of the note sued upon. Continental Bank v. Bell, 125 N. Y., 38 ; 34 St. Rep., 481 , in which Judge Andrews writing says : “Assuming that there was