108 N.Y.S. 1044 | N.Y. App. Term. | 1908
The plaintiff brought this action against the two defendants above named, alleging in his complaint that he made his promissory note on October 15, 1906, for the sum of $250, for the accommodation of the defendants, payable to his own order; that said note was indorsed by the defendants and delivered to the plaintiff, for value received, before the maturity thereof; that at the maturity of said note the said note was duly presented for payment ; that payment was refused; that the note was duly protested'; that, by reason of the protest of said note, the plaintiff was obliged to pay the amount thereof; and plaintiff demanded judgment for the sum of $250 and interest and protest fees. The defendant Samuel Abromovitz was not served with process. At the opening’ of the trial, a motion was made by defendant to dismiss the complaint upon the ground that the same did not state facts sufficient to constitute a cause of action. This motion was denied. The respondent concedes in his brief that the complaint does not set forth a joint liability on the part of the defendants, but that the defendants were sued as individuals and so charged in the complaint. The case went to trial; and the plaintiff, through its entirety, proceeded upon the theory that the defendant Ancel Markowitz, who alone appeared and defended and ■who appeals from the judgment rendered against him, was individually liable to the plaintiff on the note sued upon, evidently intending to relieve the codefendant, who is a brother of the plaintiff, from any liability thereon. There is no evidence in the case whatever to support this contention. The first statement of the plaintiff given under oath is that the defendant Ancel Markowitz “ was engaged in the dress goods business with my brother.” He further testifies that
Bisci-ioee and MacLeah, JJ., concur.
Judgment reversed and new trial ordered, with costs to appellant to abide event.