33 Barb. 621 | N.Y. Sup. Ct. | 1860
The request on the part of
the defendants, that the justice at the circuit should hold and decide that a part of the answer set up a counter-claim, was properly denied. The defendants needed no affirmative relief, and really sought none. The facts pleaded were set up as a complete defense at law. In the case of The Xenia Bank v. Lee, (2 Bosw. 694,) Lee not only claimed in his defense that he was the owner of the notes, but by way of counter-claim demanded that the plaintiff- should pay to him the amount thereof, seeking to charge the plaintiff as indorser. In this case the defendants do not claim to be the owners of the note in suit. They simply deny their liability as accommodation indorsers. A judicial determination in their favor, upon that point, is all that is required. The concluding part of their answer, that the note be given up to be canceled, is mere surplusage. At all events a reply was wholly unnecessary. Ho new issue whatever was raised thereby.
The material facts, however, set up in the answer of the defendants, and others relied upon on the trial, are established by the uncontradicted evidence in the case, namely, that the defendants were accommodation indorsers; that they indorsed the note at the request of the maker, solely upon the condition that it was to be used to take up a draft then overdue and held by the plaintiff, and upon which the maker of the note was liable as drawer and was then -threatened with prosecution; and that the note was delivered to the plaintiff for the purpose of taking up such draft, but was not accepted by the plaintiff in payment, but on the contrary was retained and held as collateral security to said draft; that the plaintiff gave no new consideration, nor parted with any property, nor gave up any other security, or agreed to extend the time of payment of the draft. Upon that state of facts was the plaintiff entitled to judgment as ordered at the circuit ? I think the cases of Coddington v. Bay, (20 John. 637,) and Stalker v. McDonald, (6 Hill, 93,) answer the question in the negative. The note of Mr. Hill in the latter case, is that
Mason, Balcom, Campbell and Parker, Justices.]