Hays v. Southgate ( 1877 )

Learned, P. J.

(dissenting):

I understand that it is settled that, in an action on a note, the plaintiff must have the legal title. (Eaton v. Alger, 47 N. Y., 345, and S. C., 57 Barb., 179 ; Sheridan v. Mayor, 4 Week Dig., 28 ; Code 111.) On the other hand, if he has the legal title, then he is the real party in interest for the purpose of the suit, although the transfer to him was colorable (Sheridan v. Mayor, ut supra), although there might be equities against the plaintiff’s assignor (City Bank v. Perkins, 29 N. Y., 554) ; or although the consideration of the transfer was inadequate (Brown v. Penfield, 36 N. Y., 475). In all of these three cases the plaintiff had the legal title. (See Sanford v. Sanford, 45 N. Y., 723.)

In the present case the possession of the note, with the indorsement of the payee, wasprima facie evidence of the plaintiff’s title. It was not conclusive. The defendants offered to prove that the note was not the property of the plaintiff; that it had never been transferred to him, that it was the property of the Saratoga Savings Bank. Now, unless the defendant is to be precluded altogether from giving any evidence of a matter confessedly issuable, I do not see how this offer could be rejected. What he would have proved in fact, we cannot say. We must take his offer as good for all that it proposed. Under tbe offer, for instance, be might have shown that tbe note bad been accidentally lost by tbe Saratoga Savings Bank, and bad been found by tbe plaintiff. Tbe defendant’s offer was to show that tbe legal title to tbe note was not in tbe plaintiff, but in another person named. ¥e must assume that be could have shown this. If shown, it would have been a defense. It is possible that if tbe facts bad been proved, they would not have shown that tbe plaintiff did not have tbe legal title. But we cannot determine that, on tbe offer.

Tbe fact of legal title in tbe plaintiff is issuable. Tbe plaintiff bad given prima faoie evidence of this fact. There was no estoppel to prevent tbe defendant from disproving this fact, and be offered to do so.

I think tbe judgment should be reversed and a new trial granted.

Present — Learned, P. J., Bookes and Boardman, JJ.

Judgment affirmed.