Lockwood v. Underwood

Headnote

Aetion on note — what question admissible, to show that the plaintiff is not the owner.

Appeal from a judgment in .favor of the plaintiff, entered upon the report of a referee. The action was upon several promissory notes made by defendant, and delivered to Stephen N. Lockwood, and by him, July 2, 1875, transferred to William C. Lockwood, and by him, October 24, 1876, transferred to the plaintiff. The answer denied the ownership by plaintiff, and alleged that the notes were owned by S. N. Lockwood, and set up, also, off-sets to the notes and counter-claims against Stephen N. Lockwood.

Upon the trial Stephen N. was called by the plaintiff, and gave evidence as to his indorsement of his name upon the $500 note, and that he was the payee named in the note. The plaintiff then read the note in evidence, and the defendant, in the course of the cross-examination of Stephen' N., asked the witness if he had received anything, or consideration from any person, for the note.

That question was objected to, and an answer to it excluded, and the defendant excepted. The defendant then offered to show by the witness “ that he had not received, up to the time the note was handed over ‘ to the plaintiff by William, any consideration therefor, and that the witness was at that time the lawful owner of the note.’ ” This was objected to by the plaintiff.

The court at General Term said : “ The referee rules out the question as to whether witness received any consideration for this note, on the ground that it is not a proper cross-examination ; and also that if the answer were in the affirmative it would be immaterial. There was an exception to this ruling by the defendant. Doubtless the offer to show an absence of any consideration for the transfer was for the purpose of sustaining the averment that the plaintiff was not the owner of the note, and that the witness was the owner. For such purpose we think the evidence was admissible. In IIays v. Southc/ate (18 Alb. Law Jour. [No. 16], 318), the Court of Appeals held that the defendant was entitled to prove a want of title on the part of the plaintiff to the note. (N. O., 10 Hun, 511 , reversed.) The evidence in this case might have affected the status of the witness, and we think the offer was improperly excluded.”