Twenty-sixth Ward Bank v. Stearns — 58 N.Y. St. Rep. 533

Majority

p. 533

The Twenty-sixth Ward Bank of Brooklyn, App’lt, v. Caroline W. Stearns et al., Impleaded, etc., Resp’ts.

(Brooklyn City Court, General Term,

Filed February, 1894.)

Headnote

1. Bills and notes—Indorsements—Conditional.

A party has a right to make a conditional indorsement.

2. Same—Subsequent indorser.

An indorser is relieved from liability by reason of the non-liability of a prior indorser.

Appeal from judgment in favor of defendants, entered upon verdict, and from order denying motion for a new trial on the minutes.

Chas. M. Earle, for app’lt; Edward G. Whitaker, for resp’ts.

Action on two promissory notes made by George W. Stearns, Jr., to order of W. B. Thomas, and indorsed by Thomas and the above-named defendants, who alone defend.

p. 534

The defense set up was that said notes were accommodation paper, and that these defendants indorsed only on the condition that the notes were not to be delivered unless the wife of W. B. Thomas also became an indorser, of all of which the plaintiff had notice.

It appeared on the trial that the notes in suit were given in renewal of four certain notes held by plaintiff, made by Stearns, Jr., and indorsed by Thomas and Stearns, Sr., one of which notes had matured and been protested, and the others were about maturing ; on these notes Caroline H. Stearns was not an indorser.

That the defendants had a right to make a conditional indorsement cannot be questioned. The making of any condition with reference to the indorsement of the notes in suit was denied by the plaintiff. This issue was left to the jury to determine, and it has rendered a verdict in favor of these defendants, which we see no • reason for disturbing. It appeared from the testimony that Mr. Kiendl was counsel for the plaintiff at the time the notes in suit were indorsed ; that he drew the notes himself and obtained the signatures of the makers and indorsers thereon, and delivered the notes to the plaintiff, who accepted them and has brought this action upon them. There was no attempt on the part of the plaintiff to explain how these notes came into its' hands other than through the instrumentality of Mr. Kiendl, who-was acting as its counsel, and was also one of its directors. The plaintiff here seeks to obtain the benefit of these notes procured for it by Mr. Kiendl, and it was for the plaintiff to show, if it could, that Mr. Kiendl was not acting for it in making the alleged agreement as to the conditional indorsement of these defendants. The jury, by its verdict, has substantially found that such agreement was made, and we think that the verdict is supported by the evidence.

As to the defendant George W. Stearns, Jr., we may further add that, as the jury has found that the defendant Caroline H. Stearns is not liable on her indorsement, he, as a subsequent indorser to her, is relieved from liability.

The judgment and order denying motion for a new trial should be affirmed, with costs.

Yah Wyck, J., concurs.

Judgment and order affirmed, with costs.