26 Misc. 821 | N.Y. App. Term. | 1899
This action was brought to recover the sum of $350 upon a promissory note made by one Mehr, payable to the firm of Bliech & Klein, indorsed first by one Newman, the second indorser being this defendant. After the note in question had matured and had been protested for nonpayment, this plaintiff went to the holders of the note (Bliech & Klein) and paid it, and the same was then delivered to plaintiff, who thereupon brought this action against this defendant without joining the first indorser, Newman.
The defense relied upon by Eriedman is, that the note was, in fact, paid by Newman, the first indorser, thereby discharging the second indorser (this defendant) from liability. At the close of the testimony each of the attorneys for the respective parties made a motion for judgment, and thereupon the court rendered judgment in favor of the defendant.
“ Motions of that character, made by the respective parties in an action, are equivalent to a consent that all the questions, both of law and fact, be decided by the court.” Switzer v. Norton, 3 App. Div. 173.
MacLean and Leventritt, JJ., concur.
Judgment affirmed, with costs.