17 Wend. 431 | N.Y. Sup. Ct. | 1837
By the Court,
Since these parties were before the court on a former occasion (6 Wend. 637), the declaration has been amended, by striking out the two special counts which it then contained, and inserting a count on the note, describing it as having been made for the sum of [433] $750. On the former trial, the special facts in relation to the making and endorsing of the paper did not appear. It was then regarded as a valid note against the maker for $2500, and as the payee had only transferred a part of the note, without showing that the residue had been satisfied, it w'as held that the legal relation of endorser and endorsees had not been created between the parties. It was said that it would be absurd to give the plaintiffs an action, as endorsees, against the defendant, when they could not maintain an action against Norton, the maker. It was agreed, however, that if only $750 was due on the note at the time of the transfer, the diffi-' culty in the way of a recovery by the plaintiffs would bo removed. That difficulty has now been removed.
The view which has been taken of the principal question disposes of the objection on the ground of variance. The declaration sets out [434] the contract according to its legal effect.
The plaintiffs have not attempted to recover on any cause of action different from that set forth in the special count, and the objection that the plaintiffs -have departed from the order made by the court, is not well taken.
New trial denied.