45 Barb. 37 | N.Y. Sup. Ct. | 1865
There is some reason to believe that the jury; under the charge of the judge, gave
The charge of the judge left it to the jury to find so much damages as they would consider such a claim to be worth against such a man as Fulda was shown to be. Had the judge instructed them to find so much damages as a claim of the amount of the note was worth against a man of Fulda’s means, I think there would have been substantially a conformity with the true rule of damages. Fulda may b"e a very mean man, and yet the claim be collectable against him. The rule laid down by the judge admitted of the construction, that Fulda, being contemptible, denying himself when called on for the payment of drafts, the jury might find that nothing could be collected from him.
The charge should have had reference to the pecuniary means of Fulda, not to “ such a man as he was shown to be.” The charge was erroneous in this respect. The amount of the note was prima facia the rule of damages. The defendants can show in mitigation of damages that the indorser is insolvent, or not worth property sufficient to enable the amount to be realized by process on a. judgment If the indorser is
Ingraham, Leonard and Sutherland, Justices.]