p. 370This action was tried before Mr. Justice Woodruff and a jury, on the the 25th day of March, 1857.
The action was brought in 1856, upon two promissory notes made by the defendant at ninety days and dated May 24th, 1842, one payable to the order of I. M. Twitchings, and indorsed by him in blank, and, the other made by the defendant dated the 24th of December, 1844, at four months, payable to the order -of S. Kipp and A. Brown, and indorsed by them.
The answer set up the Statute of Limitations as the only defense.
To take the case from the operation' of the Statute of Limitations the plaintiff examined as a witness Abraham Brown, who testified, that he held and owned the first named note until long after it became due, and testified also, notwithstanding defendant’s objection to the evidence, that the defendant made sundry payments thereon while he so held it, and within a year and a half last past, and that he transferred the note to the plaintiff before suit brought. Solomon Kipp was also examined by the plaintiff and he gave like evidence as to the second note, he being one of the payees of the note and an indorser thereof.
The defendant then offered himself as a witness on his own behalf. On objection by the plaintiff he was excluded by the Court, to which due exception was taken.
The plaintiff had a verdict and from the judgment entered thereon the defendant appealed to the General Term.
B. Winne, for the defendant (appellant).
I. The testimony of the witnesses Kipp and Brown was not admissible because the facts to which they were called to testify were not alleged in the pleadings. (Garvey v. Fowler, 4 Sand., 665.)II. The defendant Gordon was a competent witness.The plaintiff’s witnesses were assignors of the claims mentioned in the complaint, within the meaning of §§ 112 and 399 of the Code.1. The notes were transferred after they became due.A promissory note transferred after it is due, is subject to the same rules as a note, not negotiable. (Code, §§ 111 and 112.)
p. 3712. The transfer of a note not negotiable is an assignment of a chose in action. (Tulloss v. Rapelye, 3 Abbott Pr. R., 93; Chamberlain v. Gorham, 20 John., 144 ; Jagoe v. Alleyn, 16 Barb. S. C. R., 580.)8. The transfer of a note past due is not an indorsement. ( 6 Cranch, 222 .)4. The transfer of a note without indorsement is an assignment of a thing in action. (Hedges v. Sealy, 9 Barb. S. C. R., 214.)Thomas C. T Buckley, for the plaintiff (respondent).
I. Facts which avoid the Statute of Limitations may be proved, although the pleadings only allege the original demand. (Esselstyn v. Weeks, 2 Kern., 637.)II. Neither Kipp nor Brown were assignors within the meaning of the Code.1. An indorser of a negotiable note is not an assignor. {Hicks v. Wirth, 10 How. Pr. R., 555; Anderson v. Busteed, 5 Duer, 485 ; Calkins v. Pacfeer, 21 Barb., 275 , 281.)2. But neither Kipp nor Brown were indorsers at all, within any meaning of the provision. (Watson v. Bailey, 2 Duer, 512 .)Bv the Court.
—The action is upon two promissory notes made by the defendant. One of them was payable to Isaac M. Twitchings, was by him indorsed and came into the possession of the plaintiff without further indorsement.
Abraham Brown was examined as a witness for the plaintiff, and proved that the note had been held by him and that payments had been made upon it by the defendant. This was to take the case out of the Statute of Limitations.
The defendant was then offered as a witness on his own behalf, on the ground that Brown was the assignor of a thing in action. He was rejected, and an exception taken.
The case of Watson v. Bailey, ( 2 Duer, 512 ,) is decisive upon this question, and sustains the ruling of the Judge. Brown was clearly not an assignor within the meaning of the Code, from the mere fact that the note passed through his hands.
The question upon the other note is only varied by the fact that Kipp, the witness to prove payments, with a similar view to avoid the statute, had indorsed the note. The case of Ander