79 N.Y. 536, Irving Nat. Bank v. Alley

Citation:79 N.Y. 536
Party Name:THE IRVING NATIONAL BANK, Respondent, v. WILLIAM L. ALLEY et al. Appellants.
Case Date:January 13, 1880
Court:New York Court of Appeals
 
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Page 536

79 N.Y. 536

THE IRVING NATIONAL BANK, Respondent,

v.

WILLIAM L. ALLEY et al. Appellants.

New York Court of Appeal

January 13, 1880

Submitted Dec. 19, 1879.

COUNSEL

Page 537

Sidney S. Harris, for appellants. Before the statute respecting notes, made payable to the order of the maker, such a note as that in suit could not be negotiated so as to make the second indorser liable without indorsement by the payee, and his assuming the responsibility of first indorser. ( Raynor v. Hoagland, 39 Superior Ct., 11; Stoddard v. Penniman, 108 Mass., 366; Lancaster National Bank v. Taylor, 100 Id., 108; Hedges v. Seely, 9 Barb., 214; Harcop v. Fisher, 10 C. B. [ N. S.], 196; Smith v. Lusher, 5 Cow., 688; Titcomb v. Thomas, 5 Greenl., 282; McPherson v. Thoyter, Peake's N. P. C., 24; Bousanquet v. Anderson, 6 Esp., 43.) In such case the transferee, without indorsement, obtains a mere equitable title, i. e., the title of the payee. ( Hedges v. Seely, 9 Barb., 214; Daniel Neg. Ins., 553, 554; Bacon v. Burnham, 37 N.Y. 614; Central Park v. Hammett, 59 Id., 158; Whistler v. Foster, 14 C. B. [ N. S.], 248; Gibson v. Miller, 25 Mich., 355; Lancaster Bank v. Taylor, 100 Mass., 18.) Assuming that the note in suit is not to be treated as payable to bearer, this action cannot be maintained on the ground that the note was made without restriction. ( Hall v. Newcomb, 7 Hill, 416; Bacon v. Burnham, 37 N.Y. 618.) Defendants as second indorsers occupy the position of sureties for Combes, as first indorser. ( Bacon v. Burnham, GROVER, J., 619, supra.) The payee of a note indorsed by a third person cannot recover against such indorser, and a party having no right upon a note himself can transfer none to another knowing all the facts. ( Herrick v. Carman, 12 J. R., 159; S. C., 10 Id., 224; Tilman v. Wheeler, 17 Id., 328; Moore v. Cross, 19 N.Y. 227; Bacon v. Burnham, 37 Id., 614.) Combes' right to use the note was coupled with the restriction that the note be indorsed by him so that defendants might, at maturity, take up the note and recover against Combes. ( Losee v. Bissell, 78 Pa. St., 459; Gilbert v. Finckbirner, 68 Id., 213; Fegenbust v. Lang, 28 Id., 193.) The facts do not bring this case within the statute. (1 R. S., 768 [m. p.], § 5; 3 Id . [ 5th ed.], 68, § 5). It was error to find that defendants are liable on the...

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