149 N.Y.S. 338 | N.Y. App. Div. | 1914
Plaintiffs’ motion to dismiss the appeal taken by Jaffe et al. must be denied, because the answering affidavits show that the appellants Jaffe and others have not parted with their interest, since the subsequent suit in the name of Mr. Whitman as indorsee is in fact being conducted for these appellants and on their behalf.
This proceeding by suit in equity, and the decree appealed from, cannot be sustained.
Plaintiffs’ signature, obtained by misrepresentation, as found by the trial court, was nevertheless affixed to a promissory note, which the complaint admits had before suit been discounted for value before maturity. Mr. W. H. Munnich twice -signed without reading over the contract or note. Plaintiffs wholly trusted to what was said to be the tenor of the paper, so that the plaintiffs allege that they, “without further examination of the said contract and note, signed the same.” A perusal would have shown that the second signature was to a separable promissory note. The printing, “ The Installment Note below is to be detached by Thos. Howard Co.,” though smaller than some of the display printing, nevertheless was quite legible, being in what printers call heavy faced “ 8 point ” type.
In New York it is settled that one who signs such negotiable paper without reading it, when he can read and has opportunity to do so, though he supposes it is something entirely different, such as an order for goods, cannot set up his own omission against one who has become a bona fide holder. (Chapman
It is an illustration of the policy to protect negotiable instruments, under the rule that where one of two innocent persons must suffer, the loss must fall on him who reposed the confidence. (See Page v. Krekey, 137 N. Y. 307, 313.) Hence, this complaint did not state a cause of action of equitable cognizance. It, therefore, follows that the judgment should be reversed and the complaint dismissed, hut, in the peculiar circumstances, without costs, except the appellants’ taxable disbursements.
Jenks, P. J., Burr, Carr, Stapleton and Putnam, JJ., concurred.
Motion to dismiss appeal denied. Judgment reversed and complaint dismissed, without costs, except the appellants’ taxable disbursements.
