180 A.D. 914 | N.Y. App. Div. | 1917
We are not satisfied that the presumption that the $5,000 note indorsed by decedent was delivered upon its date and then had full inception has been overcome by any satisfactory evidence. The circumstances seem to indicate such delivery. The Rome bank was a heavy creditor of the Lee Canning Company for whose accommodation the note was indorsed by decedent and naturally would have welcomed such additional security for moneys advanced. The note was delivered to said bank by the treasurer of the canning company and it seems to us improbable that it was not there negotiated and discounted and in the usual course forwarded to the Albany bank where payable for rediscount or collection. Presumptively the note was presented to the Rome bank prior to the death of the accommodation indorser and we can see no reason why that bank should have delivered it back to the treasurer of the canning company for him to present to the Albany bank for discount. That is not the usual course in banking. The note indorsed by claimant was forwarded by the Rome bank to the Albany bank, and there negotiated. The transaction claimed by the executors is so unusual as to invite further inquiry. The books of the Rome bank might throw some light upon the matter and they were not produced. We think a new trial should be granted. All concurred. Decree reversed upon the law and facts, and matter remitted to the Surrogate’s Court for a rehearing, with costs to appellant to abide event. The particular questions of fact upon which the decree is reversed are stated in the per curiam opinion.
