Opinion
Submitted December 13, 1906
Decided December 21, 1906
James S. Darcy for appellant. William Willett, Jr., for respondent.
The action is brought on a promissory note made by one Smith to the plaintiff, which the defendant indorsed prior to its delivery to the payee. But two questions are presented on this appeal.
First. It is alleged the referee committed error in excluding evidence offered by the defendant to show that Smith, the maker, had, some time subsequent to the maturity of the note, a sufficient deposit in the plaintiff bank to pay it, which the plaintiff failed to appropriate for that purpose. The case of National Bank of Newburgh v. Smith ( 66 N.Y. 271) is a conclusive authority to the effect that in the absence of any direction or agreement to that effect it was optional with the plaintiff whether it would apply the money or not upon the note in suit, and that it was under no positive legal obligation to do so. Therefore, there was no error committed in this respect.
Second. The note was given in renewal and to take up an earlier note also indorsed by the defendant. To establish the fact that the defendant had indorsed the note with the purpose of giving the maker credit with the payee, proof was given tending to show that default having been made in the payment of the earlier note notice of protest thereof was given to the defendant. It is urged that the evidence as to the protest of the earlier note was not of a proper character. It is unnecessary to consider this question, for since the enactment of the Negotiable Instruments Law (Laws 1897, ch. 612) the law obtaining in the case of such indorsements as that made by the defendant has been radically changed. Prior to that time the indorser was presumed to be a second indorser and not liable to the payee, though it was competent for the payee to prove aliunde that the intention of the indorser was to give the maker credit with the payee. ( Bacon v. Burnham, 37 N.Y. 614; Coulter v. Richmond, 59 N.Y. 478.) Section 114 of the Negotiable Instruments Law prescribes a different rule. It is enacted that "Where a person, not otherwise a party to an instrument, places thereon his signature in blank before delivery, he is liable as indorser in accordance with the following rules:
"1. If the instrument is payable to the order of a third person, he is liable to the payee and to all subsequent parties."
This note was made in December, 1898, and, therefore, the proof offered by the plaintiff was not necessary to maintain its cause of action, and the error, if error there was, was immaterial.
The judgment appealed from should be affirmed, with costs.
GRAY, O'BRIEN, EDWARD T. BARTLETT, WERNER, HISCOCK and CHASE, JJ., concur.
Judgment affirmed.