Corbitt v. Miller

43 Barb. 305 | N.Y. Sup. Ct. | 1865

By the Court,

Johnson, J.

The facts stated in the answer, that the note in question was made by the defendant without consideration, and delivered to O’Hearn, the payee, solely for his accommodation, and that it was transferred by O’Hearn to the plaintiff after it became due, must be taken to be admitted. But these facts alone constitute ho defense; This seems to be well settled. (2 Parsons on Notes &c. 29. Charles v. Marsden, 1 Taunt. 224. Caruthers v. West, 11 Adol. & Ellis, 143. Sturtevant v. Ford, 4 Man. & G. 101. Thompson v. Shepherd, 12 Metc. 311.) In Charles v. Marsden, (supra,) Lawrence, J. said there was “no reason why a bill might not he negotiated after it was due, unless there was an agreement restraining it.” And he further remarked, that if there had been such an agreement it should have been stated in the plea, and might then have constituted a defense. To the same effect is Stein v. Yglesias, (1 Cromp., Mees. & Ros. 565.) Ho such fact is here stated in the answer. In the case of accommodation paper it is quite' obvious that the indorsee takes greater rights than his indorser had. The payee can not sue an accommodation maker or indorser at all; because, as between them, no consideration passes. But it is different with the indorsee of the payee; because the very object being to accommodate and benefit the payee, his transfer for a valuable consideration fulfills the intention, and is binding upon such maker or indorser. And notice to the indorsee in such a case is of no moment, and adds nothing by way of defense. (Brown v. Mott, 7 John. 361.)

The question then arises, whether there has been any such misappropriation of the note as to constitute a defense in favor of an accommodation maker. The answer alleges that the note was made and given to O’Hearn, “for the purpose of enabling O’Hearn to raise money to buy or pay a mortgage held by the plaintiff on property owned or claimed by said O’Hearn.” It then alleges that the note was not used for such purpose, hut remained in the hands of O’Hearn until after the same became due, and was then transferred to the plaintiff. If this could he deemed a misappropriation in. any sense, there is nothing in the answer to show, or even suggest, that it has been or could be in any way injurious to . the defendant. This, I think, is necessary to constitute a defense. (2 Parsons on Notes and Bills, 28.) The answer does not even allege that the mortgage has not been paid by the transfer; and if it did, there is nothing to show that the defendant was in any way holden for the payment of tho mortgage, or had any interest in the mortgaged property. He expected to become holden for the amount of the note, and it can be of no possible consequence to him whether it was transferred to one or another, so long as he had no interest in the application of the proceeds. But in truth no misappropriation is alleged. The answer only shows that it was expected and intended that the plaintiff should have the proceeds of the note after it was negotiated, and that instead of the proceeds he has taken the note. This is all that is strictly or even substantially alleged. This is no misappropriation within any of the cases. The substantial object has been complied with, so far at least as the defendant is con-' cerned, and the judgment is right, and should be affirmed.

[Monroe General Term, March 6, 1865.

Johnson, J. 0. Smith and jE. Darwin Smith, Justices.]