Kelly v. Burroughs
| Citation | 102 N.Y. 93,6 N.E. 109 |
| Parties | KELLY v. BURROUGHS. |
| Decision Date | 26 March 1886 |
| Court | New York Court of Appeals |
OPINION TEXT STARTS HERE
Appeal from order of general term, Second department, affirming judgment entered upon a verdict directed at a circuit court by Mr. Justice PRATT.
Mr. Fisher, for appellant.
Mr. Ross, for respondent.
The complaint states that on the thirtieth of November, 1881, one Evans made and executed his promissory note, payable four months after date to the order of the defendant for $600; that the defendant indorsed the note; that so indorsed, and before maturity, the note was transferred to the plaintiff for value. It alleges presentment for payment, protest, and notice of non-payment, and that plaintiff is the owner of the note. The defendant answered, but denied none of the allegations of the complaint. He set up, however, that his indorsement was without consideration, and for accommodation, and upon information and belief, that it had no legal validity binding upon him at all until at or about the time of its date, when it was discounted for and at the plaintiff's request at the Commercial Bank, and the proceeds paid to the plaintiff. For a second defense the defendant alleges that the note was paid.
Upon the trial the plaintiff put in evidence the note, signed by Evans as maker, indorsed first by the defendant, and second by the plaintiff. He computed the interest. It is obvious that upon the case as it then stood the plaintiff had made out his cause of action. The admissions in the pleadings, the possession of the note, the computation of interest, established the right to recover, and the amount due. But he also proved that the Commercial Bank had recovered a judgment against the maker and himself upon the same note; that he paid its amount to the bank, and had the judgment satisfied as to himself. It was proven, also, that the note was the property of the bank at the time suit was brought against Evans and Kelly. The defendant then testified that he indorsed the note at the request and for the accommodation of Evans, the maker, and returned it to him; that the plaintiff procured the note to be discounted, had the money placed to his own credit, and on the same day drew the money. The plaintiff then testified that he indorsed the note and procured it to be discounted at the request of the maker, and gave the proceeds to him. Other evidence was given to the same effect. The defendant's counsel asked to go to the jury upon the testimony. The plaintiff's counsel requested the court to direct a verdict in favor of the plaintiff....
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