49 N.Y.S. 965 | N.Y. App. Div. | 1898
This action is upon a promissory note for $7,500, made by the defendants Hagemeyer, in their firm name of George Hagemeyer & Sons, payable to the order of William H. Chew, •and indorsed by him and Charles C. Cokefair. The defendants Hagemeyer and Chew answered the complaint. The defendant Cokefair made default. Pending suit, Hagemeyer & Sons made an assign
Upon the issues framed by these answers, the case came on for trial, and, for some reason not disclosed, the ulaintiff, instead of resting upon the presumption of bona fides resulting from his possession of the promissory note, undertook to show by witnesses the circumstances under which Blair, the plaintiff, took the note, and also the circumstances under which it was issued originally, and also state
It will thus be seen that the learned judge disposed of the case by determining himself that the note sued on was, as matter of fact, diverted paper, and that the plaintiff had failed to show that he was
The learned judge was also incorrect in taking the case away from the jury on the ground that the plaintiff failed to show that he was the owner in good faith, and for value, of the note in suit. It would seem that this question arose in the mind of the court because of some doubt entertained respecting the Fox judgment and the ownership of that judgment by Blair at the time the satisfaction piece was delivered to Cokefair. As the case stood, there was evidence to show that the plaintiff was a bona fide holder for value. The circumstances under which the note was bought were sworn to by Rose-man; and, if his story was to be believed, there could be no doubt of the plaintiff being a bona fide holder for value. The purchase was made from Cokefair, who held the note. Money and bonds and the surrender of a judgment against Cokefair were the consideration. So far as the judgment was concerned, the extinguishment of the debt to Cokefair was a good consideration, pro tanto, for the note. Mayer v. Heidelbach, 123 N. Y. 332, 25 N. E. 416. The debt of Cokefair on the Fox judgment was paid, and that judgment was satisfied. The question of the ownership of that judgment by Blair was not in any way involved. It did not appear that the satisfaction piece was signed by Blair. The presumption is that it was executed by Fox; but it was for an indebtedness which was sworn to as being one of Coke-fair to Blair, Fox being apparently a nominal plaintiff. It was therefore shown that the plaintiff was a bona fide holder for value of this note; and, even if it were diverted paper, it was incumbent upon the defendants, under the circumstances, to show, before a recovery could be defeated, that the plaintiff had notice that it was diverted paper, or that there was some clear evidence of bad faith in his taking the paper. American Exch. Nat. Bank v. New York B. & P. Co.,
It is urged by the respondents that the case stands as one in which both parties submitted to the court, by their requests for the direction of a verdict, those questions which otherwise it would have been for the jury to determine; but no such question arises on this record. The court expressly declined to direct a verdict, and thereby left it to the jury. The court had decided that the case was one for the jury, and, after that decision, the plaintiff’s counsel withdrew his motion for a direction in his favor; and the court did not act upon requests for a verdict, but dismissed the complaint for failure of proof on the part of the plaintiff, and, as we have Concluded, erroneously.
The judgment appealed from should be reversed, and a" new trial ordered, with costs to appellant to abide the event. All concur.