Wright v. Boyd

3 Barb. 523 | N.Y. Sup. Ct. | 1848

By the Court,

Gridley, J.

I. It is not a question before us whether the witness Lathrop was incompetent on the ground of interest. The objection was “ that he was a stockholder, in Luther Wright’s Bank, the plaintiff in the suit, and therefore a party.” It is clear that he was not a party. Had the objection been upon the ground of interest, that interest might have been removed by an assignment of his stock, or by an indemnity as to costs. (17 Wend. 142. 19 Id. 364. 1 Hill, 609.)

II. There was no error in allowing the special endorsement (which was shown to have been made for the mere purpose of collection) to be stricken out upon the trial. That right has been sanctioned too long to be now drawn in question. (2 Hill, 140. 18 John. Rep. 52, 230. 15 Id. 247. 1 Denio, 608.)

III. Regarding the copies of the drafts appended to the declaration as a mere bill of particulars, we do not see how the defendant could have been misled by the omission of the endorsements upon them. Though a stricter rule may be applied to cases where a copy is required to accompany the declaration, under the act of 1832, yet, this suit being against the acceptor alone, does not fall within that class of cases. The copies of the drafts in this case were bills of particulars, therefore, and nothing more.

IV. The most important question arising upon this bill of exceptions, is whether the suit can be maintained in the name of the plaintiff. The drafts being drawn in favor of Lathrop as cashier, were in law drawn in favor of the bank. (See 1 Denio, 608.) They were the property of the old bank when the new association was formed; and were transferred to it, as we presume, as a part of Luther Wright’s share of the capital of the new bank. It is true that, if not collected, the new association was not to bear the loss. That, however, is not inconsistent with the idea that the legal interest in the paper was in the new bank. The transfer to the new association may be compared to the transfer of securities to a creditor, as collateral security, to be prosecuted, and applied in payment when collected ; but the collection to be at the risk of the assignor. No one ever doubted that in such a case the creditor was the owner of the paper thus assigned, and that he might sue it in his own name. We regard the right of the new association to prosecute the drafts in its own name as standing on precisely the same ground. We have come to this conclusion upon the testimony of the witness Lathrop, given in chief, and have disregarded that drawn out on the voir dire, which was addressed solely to the court, and is not general evidence in the cause. It is not perceived, therefore, how this action can be defeated, even if it should be conceded that a banking association cannot be an endorsee of a draft for the mere purpose of collection, but must have an actual and beneficial interest in the security, to be entitled to maintain an action in its own name, upon it. The case amounts, substantially, to an assignment of the drafts to the new bank, with a guaranty of collection. We are therefore not called upon to consider the question referred to, though it was strenuously urged upon the argument.

The motion for a new trial is denied with costs.