p. 61Eliphalet L. Davis, Resp’t, v. Ella V. A. Dayton et al., App’lts.(New York Common Pleas, General Term,Headnote
Bills and notes—Bona fide holder.The bona fide holder of a check is entitled to enforce it against an accommodation maker and indorser.
Appeal by defendants from an affirmance by the city court of a judgment in favor of plaintiff, entered upon the verdict of a jury.
Alfred P. W. Seaman, for appl’ts; Foley & Powell (Henry A. Powell, of counsel), for resp’t.
The action was upon a check made by Ella Y. A. Dayton and endorsed by Abram H. Dayton. Both defendants ■put in issue the allegations of the complain, and the answer of Mr. Dayton sets up that the check was signed in blank by Mrs. Dayton and delivered to him, to be used as he might require, when there was any balance in bank to draw against; and that lie delivered the check to one Ward (who had previously asked him for a note •or check for his, Ward’s accommodation), and that Ward received the check on the agreement that it should not be presented for payment, or deposited, and was informed that there were no funds in bank to meet it; and that, if it was transferred to plaintiff, it was after it was due and payable, and without consideration and ior the accommodation of Ward. On the trial the plaintiff proved "that he received the check two days after it was made and that he
p. 62paid Ward the whole face of the check and was told by the latter to hold it. It was presented afterwards at the bank for payment and payment was refused. Plaintiff was a
bona fide holder of the check and entitled to enforce it against the maker who had made it for the accommodation of the latter. It had legal inception when plaintiff had purchased it from Ward for full value. No defense of diversion was pleaded and the court properly excluded offer of proof thereof either by Dayton or Ward, although,, when plaintiff waived objection to such proof, defendants did not offer any. The exceptions are unavailing. There was a motion to dismiss the complaint (made apparently before plaintiff rested), on the ground that there was no proper demand and notice to charge the endorser; but after the plaintiff rested the motion was not renewed and no further objection was made on that ground. Exception was taken to the exclusion of a conversation between Ward and a witness called for defendant. The object of it was not stated except that it was to be connected so as to prove knowledge of the plaintiff. Plaintiff’s knowledge could not be proved by giving testimony as to what Ward knew, said or heard.
Judgment affirmed with costs.