34 A.D. 504 | N.Y. App. Div. | 1898
The three grounds of the motion to dismiss raise the legal ques-r tions to be considered:
*508 1. The indorsement of the note in blank by the payee Dalzell •and the production of it by the plaintiff constituted prwna facie evidence of the latter’s ownership. (4 Am. & Eng. Ency. of Law [2d ed.), 318, and cases cited.) The mere fact of subsequent indorsements does not affect this result. Presumably the ' prior holder, the plaintiff, took up the note. That view is strengthened here by the cancellation of the later indorsements.
To rebut this presumption of ownership, the defendants rely mainly upon the plaintiff’s cross-examination. From this it appears that, three days before the note was made, Dalzell gave the plaintiff ■a power of attorney to collect and receive all moneys payable to him, and that the plaintiff received the note for Dalzell, and- acknowl- ■ edged payment of a part of it. But this does not necessarily rebut ■ the legal presumption of ownership. It is entirely compatible with , such ownership. The case is quite different from those cited (Iselin v. Rowlands, 30 Hun, 488; Bell v. Tilden, 16 id. 346), where there, was explicit and uncontradicted evidence that the plaintiff was-a mere collection agent.
It also appeared by the plaintiff’s testimony that the noté was ' delivered by Haaren, the last indorser, to the Irving National Bank for collection, and remained there for some months after the com- • mencement of the action, and that it was delivered to Haaren as security for a debt due him by the plaintiff, or by the plaintiff and the latter’s father. Haaren gave it to the plaintiff’s counsel some months before the trial.'
■ This surrender of the note by Haaren, the pledgee and creditor, to the plaintiff, the pledgor and debtor, is susceptible of two inferences ; one, that the debt had been paid, and the other that, though he debt had not been paid, Haaren intended to relinquish his lien thereon. It was for the defendants to rebut these inferences, since ■the legal presumption is in' favor of the plaintiff’s title. Haaren’s act, unexplained, points to the conclusion that the legal title to the note was in the plaintiff throughout. Certainly,, in any view of Haaren’s acts, the parties liable upon the note would have been jus-' tiffed and perfectly safe in paying the plaintiff. His legal title ■ prima facie, has not been successfully -shaken,, and clearly the case on that head should, at the very least, have been submitted to the jury.
Other competent evidence was excluded. The defendant Chew was asked what was said by Mr. Hagemeyer to him upon a particular occasion with regard to the giving of the notes. This was objected to, and plaintiff’s counsel, in answer to the objection, stated that he proposed “ to prove that the statements made by Mr. Hagemeyer to the witness on this occasion were communicated by him to Mr. Zimmer, and that it was on the faith of those statements that the notes were taken with the indorsement of the Hardwood Log Company and Hagemeyer & Sons, taken by Mr. Zimmer as representing Mr. Dalzell and by Mr. Dalzell afterwards personally.” The objection was thereupon sustained. It is hard to see on what theory this ruling was made. The attitude of the firm with regard to the notes prior to their delivery was certainly material, and the admissions of one of the members of the firm, who was conducting the transaction, were competent-evidence of it, especially when communicated to the payee and his agent. The witness was then asked questions tending to .show that Mr. Hagemeyer spoke of the responsibility of
3. As to the executors of the estate of (leorge Hagemeyer we think the judgment should be affirmed. By leaving a portion of the estate in the business under the testator’s will, the executors, if partners at all, merely became such individually to the extent of the fund invested. (Columbus Watch Co. v. Hodenpyl, 135 N. Y. 430.) The general estate of the deceased partner did not thereby succeed to his place in the firm, or to the liabilities attached thereto. The testator , nowhere attempted to put the general assets of his estate at the risk of the business which was to be conducted after his decease. The business was to be so conducted, not by his executors, but by his two sons individually, and the only power conferred upon the executors was to permit the use of the testator’s capital (already invested in the business) by his two sons individually as surviving partners. It follows that no cause of action was made out against the executors in their representative capacity, and the judgment must, therefore, be affirmed as to them.
■ An amendment was, however, asked for at the trial converting the action against the executors into one against them individually. We think it clear that no such relief could there have properly been granted. What was sought was, in substance, to bring new parties
As to the legal representatives of George Hagemeyer, the judgment should be affirmed, with costs. As to the other defendants, respondents, the judgment should be reversed and a new trial granted, with costs to the appellant to abide the event..
Van Brunt, P. J., Rumsey, Patterson and O’Brien, JJ., concurred.
As to the legal representatives of George Hagemeyer, judgment affirmed, with costs. As to the other defendants, respondents, judgment reversed and new trial granted, with costs to appellant to abide event.