Luft v. Graham

Robinson, J.

It was the duty of the appellants to see that the cause was restored to the calendar of the general term as part of the conditions upon which they were relieved from a former default. This they neglected to do, and respondents’ attorney, in accordance with that order, finding it omitted on the first day of the October general term, procured it to be so restored, and some days afterwards it was regularly called to a judgment of affirmance by default.

I regard this action as regular, and in consideration of this being a second motion to be relieved, regard it but proper to look into the merits presented by the justice’s return.

The note upon which a recovery was had was given by the defendant, McKenzie, to plaintiff for repairs they had done to his wagon, and on their refusal to surrender their lien on it except upon the security of a good indorser.

Upon this consideration the note in suit was given by McKenzie with the indorsement of the appellants, a credit of two months being allowed. Instead of note being drawn to the order of the appellants, it was in teyns made payable to the order of the plaintiffs. The- testimony warranted the justice, notwithstanding the form of the note, to find that the note was indorsed by the appellants for the accommodation of McKenzie, and for the purpose of enabling him to procure a release of his wagon from the lien. The appellants, though seeking to avail themselves of a legal cavil that their names would appear as second indorsers, and their' private intention was to make an indorsement to strengthen the note, do not deny their knowledge of the object for which the note was given, nor do they pretend they communicated to plaintiffs any intention to limit their responsibility as accommodation indorsers for McKenzie, with the sole view of obtaining, on the indorsement, a release of the property from respondents’ lien.

Under such circumstances their liability is well established by the court of appeals in Moore agt. Cross, (19 N. Y., 227.)

Their appeal is without merits, and this application to be again relieved from a fault must be denied with $10 costs.