81 N.Y.S. 422 | N.Y. App. Div. | 1903
On the 26th of December, 1899, the defendant made her promissory note by which she promised, five months after date, to pay to the order of L. Toplitz, Son & Co., $5,000 at the Chemical National Bank, New York, for value received. The note was indorsed by L. Toplitz, Son & Co. and was discounted by the Ninth National Bank, to the rights of which bank the plaintiff has succeeded by consolidation of the tfvo corporations.
This was an accommodation note, and when it was discounted by the Ninth National Bank that bank had full notice that it wa's an accommodation note. It was not paid at maturity, and at the
When the case came on for trial the facts set up in defense were admitted, and the simple question arising was whether as to the plaintiff in the action, the defendant, the maker of the note, stood in the attitude of a surety and was released from her obligation as maker of the note by reason of the extension of the time of payment given to the person for whose benefit the note was discounted,
' without her knowledge or consent. The trial judge held that the facts thus set up did not constitute a defense, and that the defendant was primarily liable as the maker of the note, notwithstanding the extension of the time of payment. In this ruling the trial court was right. Concededly this was .an .accommodation note; it was given with the intention that the indorser should raise money on it, on the liability of the maker, and the maker is liable primarily notwithstanding the knowledge of the holder that she was an accommodation maker only. (Neg. Inst. Law [Laws of 1897, chap. 612], | 55, as amd. by Laws of 1898, chap. 336.) This note was discounted on the credit of the maker whose very purpose was to become absolutely liable. Thus she became primarily liable. There is no relation of surety. By section 3 of the Negotiable Instruments Law, the person primarily liable is the one who hj the terms of the instrument is absolutely required to pay the same, and all other persons are secondarily liable. No other question of liability can arise in this case than such as appears
The verdict for the plaintiff was properly directed and the judgment should be affirmed, with costs.
Van Brunt, P. J., O’Brien, Ingraham and Hatch, JJ., concurred.
Judgment affirmed, with costs.