30 N.Y.S. 649 | N.Y. Sup. Ct. | 1894
The action was to charge the defendants William W. Weston, Orren Weston, and Abijah Weston, as indorsers of a promissory note of $2,000, made by the firm of George Van Campen & Sons, payable to the order of J. K. Van Campen, and bearing, besides the indorsement of the payee, an indorsement in the firm name of <rWeston Brothers.” The complaint alleged that the firm so named was a copartnership consisting of the three defendants; that they indorsed the note in their firm name, and' that it was afterwards, and before maturity, duly transferred to •the plaintiff, for value. All the defendants were personally served in the action about the 1st of February, 1893. The defendant Abijah alone answered the complaint. He denied that the indorsement in question was made by or for the firm of Weston Bros., but alleged that it was made by the defendant William W. after the dissolution of the firm, and without the knowledge or consent of the defendant answering; that it was not made in the business •of the firm, but solely for the accommodation of the makers of the note; and that the plaintiff took the note with notice of all those •facts. On the trial, of the issues thus joined the facts above stated were proved without contradiction, and a verdict was directed for the defendant Abijah, and judgment was entered dismissing the complaint as to him. Immediately after the entry of that judgment the plaintiff caused judgment for the amount of the note to be entered as by default against the defendant William W. Weston and this appellant, and it is from the denial of the motion of the latter to open the default as to him that this appeal was taken.
The papers on this appeal show the same defense existing in favor of this appellant as that which has been established in favor of the defendant Abijah. That defense is ample, and highly meritorious. The indorsement by William was a fraud on the other defendants, and knowledge that it was made outside the business of the firm, and after its dissolution, charged the plaintiff with notice of the want of authority to make it, and with complicity in the fraud involved. Gansevoort v. Williams, 14 Wend. 138. In such a case the law will not lend its aid to the enforcement of the claim, even as punishment for neglect to answer, if such ..neglect can be reasonably excused consistently with good faith on •the part of the defendant. The statute expressly provides for opening defaults which are suffered through excusable neglect. Code Civ. Proc. § 724. The excuse of the defendant here for not answering was that he was assured by his brother William that part of the note was paid already, and that the rest would be paid before .judgment could be taken against him, and that he relied implicitly
Order appealed from in each case reversed, and the motion in each case granted, without costs of this appeal to either party, on condi- • tion. that in case of recovery by the defendant his judgment shall be without costs of the action after notice of trial; also that if the plaintiff elect, within 20 days, to discontinue as to the appellant, be may do so without the payment of costs.