167 A.D. 113 | N.Y. App. Div. | 1915
The following is the opinion of the court below:
This is an action brought by the plaintiff as holder in due course of a promissory note for $3,000 made by the defendant Richard W. Buckley, payable to his own order, and indorsed by the defendant James H. Stack. Stack alone is defending the action upon the ground that he indorsed the note for the accommodation of Buckley before any date had been placed upon it and delivered the uncompleted note to Buckley upon condition that it should not be negotiated until he had obtained the signature of another good indorser, and that later, before the note was negotiated, he notified Buckley not to use it upon any condition and demanded its return, which Buckley promised to do. He alleges that Buckley, contrary to his express instructions, filled in the date of the note and negotiated it to the plaintiff, who, he alleged, had full knowledge of the facts and of the infirmity of the note. Upon the trial it appeared that Buckley took the note to one Richard Lydon, an attorney, and requested him to cash it in order to enable Buckley to consummate a business transaction in Mexico. Buckley went with Lydon to see the plaintiff, a client of Lydon’s, and Lydon persuaded the plaintiff to cash the note, assuring him that Stack, the indorser, was a responsible man. The plaintiff directed Lydon to cash the note for Buckley out of funds belonging to the plaintiff, which were then in Lydon’s possession. Lydon drew $2,540 of the plaintiff’s money from