64 N.Y. 155 | NY | 1876
The only question in this case is whether the defendant was entitled to indemnity, as provided by statute, in actions upon lost negotiable notes. (2 R.S., 406.) It was not necessary to offer indemnity before action brought. It is sufficient to give it before recovery. I infer that the learned judge intended to decide that the plaintiff could recover without giving indemnity. The case states that the plaintiff's counsel said that the plaintiff would give a bond if required. The defendant's counsel then moved for a nonsuit on the ground (among others) that indemnity had not been offered; and the court directed a verdict for plaintiff without requiring him to deliver the bond. *158
The counsel insists that the plaintiff is not bound to furnish indemnity for various reasons:
First. That the certificate or instrument, in this case, is not a negotiable promissory note. I think it is. It contains an express promise to pay Feist, or order, a specified sum of money, upon demand, with interest. These are the statutory elements of such a note. (1 R.S., 721, § 1.)
The words, "on the return of this receipt," do not make it payable upon a contingency, or constitute a condition precedent to any payment. If they did, no recovery could be had without a return of the certificate. This restriction would be implied if not expressed; it is implied in every promissory note; and there is also an implied exception, on account of mistake or accident. When these occurred courts of equity formerly enforced the obligation upon such terms of indemnity as was deemed just; and now courts of law may enforce it upon requiring the observance of the statutory indemnity. This clause is not of the essence of the contract, but is inserted for the convenience and safety of the maker. In the case of Patterson v. Poindexter (6 Watts S., 227) there was no express promise to pay; and the intimation as to the effect of the clause requiring a return is not authoritative, and has not been followed in this State or elsewhere. (Parsons on Bills and Notes, 26, and cases cited.) In 29 New York, 146, the principal question was, whether a demand was necessary before action brought upon such a certificate. The objection that the instrument is not a promissory note, because payable in paper currency, is answered by the suggestion that this must be taken to refer to the legal tender paper currency, which under the United States laws and decisions is money.
It is also urged, that as Fiest testified that the certificate had not been indorsed, the defendant could not be injured, and therefore no indemnity was necessary. Before the statute, the fact of negotiability, or that the instrument had been negotiated must have been proved. The presumption was the other way. The statute was passed to remedy such cases, and provides that if the action is on a negotiable note, indemnity *159 must be given without regard to the fact of actual negotiation. The authorities cited by the counsel upon this point do not answer the unqualified requirement of the statute. The action is, substantially, on the instrument. The complaint alleges the loan of the money, the taking of the instrument and the transfer to the plaintiff. I think that the defendant was entitled to indemnity within the spirit and intent of the statute; but I agree with the counsel for the plaintiff that there is no necessity for a new trial.
There was no defence made to the action; and a proper disposition of the case is, that if the plaintiff shall, within thirty days, execute and deliver, or offer to the defendant or his attorney a bond of indemnity, approved by one of the judges of the City Court of Brooklyn, the judgment is affirmed, without costs to either party in this court; if not, the judgment is reversed and a new trial granted, costs to abide event.
All concur.
Judgment accordingly.
