Kemeys v. Richards, 11 Barb. 312

Kemeys v. Richards

11 Barb. 312 | N.Y. Sup. Ct. | 1851

By the Court,

Mitchell, J.

The action is on a note, dated 27th May, 1848, at six months, for $1098,70, drawn by Bicharás & Fleury to their own order, and indorsed'by them, and by *314the firm of Lee & Richards, consisting of Robert P. Lee, jr. and Henry B. Richards. The answer of H. B. Richards alledges that the note was indorsed by Lee, and by him delivered to the plaintiffs, in payment of his private debt, and without the knowledge or consent of Richards; and that the plaintiffs had full knowledge of these facts. The plaintiffs, in their reply, deny none of these allegations, except the one that theindorsement was made without the consent of Richards : that, therefore, was alone at issue; and the pleadings admitted that the note was transferred to the plaintiffs for the private debt of Lee, and that this was known to the plaintiffs. According to the decisions in our courts, (whatever the law may be in England,) it was then incumbent on the plaintiffs to show the assent of Richards, in order to bind him. (Wilson v. Williams, 14 Wend. 156. Gansevoort v. Williams, Id. 133 to 138.) This knowledge and assent must be clearly shown, and not left to be inferred from vague and slight circumstances. (Everingham v. Ensworth, 7 Wend. 328. Rogers v. Batcheler, 12 Peters, 229.) But it was affirmatively proved that the note was given to the plaintiffs in payment of a debt of Lee alone, contracted before he became a partner of Richards.

Whether Richards assented, was a question of fact, peculiarly "within the province of the referee, and with which we ought not to interfere, if it were merely doubtful, whether he was correct in his conclusion on that matter, or not. But, in fact, there is no evidence of his assent. The proof to sustain the assent, was an entry made in the partnership books, by Lee alone, in September, 1848, four months after the note was dated; in which he charged himself with the note. But Richards was away from the city, when that entry was made; and when he first saw it, said that Lee had no right to use the note for that purpose: this was not until about the 10th of October,, 1848: and he also said, that that entry ought not to be there. This disproved his assent.

Exception was taken to some testimony admitted by the referee ; but it is immaterial, and may be rejected. The report of a referee may be sustained, although he improperly admits some *315testimony, if, on rejecting that, enough remains to sustain his report.

[New-York General Term, June 14, 1851.

Edmonds, Edwards and Mitchell, Justices.]

The report must be confirmed, with costs.