21 Barb. 241 | N.Y. Sup. Ct. | 1855
The complaint alleges that the note in question was made payable and delivered to the president, directors and company of the Seneca County Bank, and that the plaintiffs’ testator derived his title to it by transfer and assignment thereof to him by the bank, in his lifetime.
At the time the plaintiff rested, the only evidence to prove the note was ever delivered to the bank, was the assignment by the cashier, indorsed upon the note, which was without date, or any evidence of the time when it was made. If it was essential to the maintenance of the action, to prove the delivery of the note to the bank, and the transfer of the same to the plaintiffs’ testator, it should have been shown that such delivery and transfer were made before the commencement of the action. The cashier’s assignment did not prove either. Non constat but it was made on the. day of the trial. Besides, there was no evidence of any authority in the cashier to transfer the note. Without authority from the bank, evidenced by a resolution of the board of directors, usage in similar cases, or in some other way, he clearly had no authority to do the act.
Upon the evidence thus presented, there was manifestly a faiB ure of proof to sustain the action, and the motion for a nonsuit should have been granted. The possession of the note in court at the trial, by the plaintiffs’ counsel, was not prima facie evidence, as in the case of commercial paper, negotiable in terms, that the note was transferred to the testator or the plaintiffs
Upon this state of facts, it seems to me quite clear, that the plaintiffs should recover. (Bank of Rutland v. Buck, 5 Wendell, 66.) If the ssme facts had appeared on the plaintiffs’ showing, in the first instance, the only difficulty in the way would have been the manner in which the plaintiffs had stated the title of their testator, in the complaint, to the note. But would this have been an insuperable difficulty 1 It seems to me it would not. The code (§ 169) provides that “ no variance between the allegation in a pleading and the proof, shall be material, unless it shall have actually misled the party, to his prejudice, in maintaining his action or defense upon the merits.” There was no allegation, on the trial, that the defendants were misled. Indeed they could not have been, for they furnished the evidence showing the plaintiffs’ right to recover.
Among other defenses set up by the defendants at the trial, was that of usury in the note upon which the action was brought. With a view of repelling this defense, the plaintiffs called one Van Slyck as a witness, who testified that he heard
Hew trial denied.
Johnson, Selden and Welles, Justices.]