Beall v. General Electric Co.

Giegerich, J.

This action, is brought against the General Electric Company of Yucatan, Marcus Nathan, Horace H. Thayer and August H. Schumacher, upon the following promissory note:

“ $2,400. New York, August 24, 1893.

One hundred and twenty days after date we promise to pay to the Order of Marcus Nathan twenty-four hundred dollars, with interest for sixty days at 6 per cent, per annum, at N. Y. Produce . Exchange Bank. The General Electric Co. of Yucatan, H. H. Thayer, treas.; A. Schumacher, president. ' Value received. No., 8. Due Dec. 22-26, 1893.

“Indorsements: Marcus Nathan, A. Schumacher, H. H. Thayer;

. Claflin & Kimball, Incorporated, M. M. Kimball, treas.” ■

All defendants defaulted except the: defendant Nathan, who set up in his answer that his indorsement of the note was for the accommodation of the Mather Electric Company, and that the plaintiff was not the real party in interest. The latter defense was withdrawn at the trial; and. by 'consent of counsel the jury was discharged and the case submitted to the court. The note in suit, bearing the indorsements of the defendants Nathan, Schumacher and Thayer, was delivered in August, 1893, by the defendant Nathan to the said Mather Electric Company .in payment for certain electric-lighting apparatus furnished by that company to the defendant, the General Electric Company of Yucatan. .It was subsequently and .prior to its maturity transferred by said Mather Electric Co. to Claflin & Kimball, Incorporated, in partial repayment of money advanced by the latter to the former' company. Subsequently and before the maturity of said note it was discounted at the International Trust Co. of Boston, by whom-it was. presented for payment and returned protested to said Claflin & .Kimball, and notice of protest was given to all defendants; Thereafter and after the maturity of the note it was assigned by Claflin & Kimball to the plaintiff, who is now the holder and owner thereof. The note having been indorsed in blank and without restriction by the payee thereof, it was transferable by delivery just as much as if the same had been payable to bearer, and ^conferred upon the holder the title thereto, and the right to sus ' thereon, to fill the blank, and to make, the indorsement special.

2 Am. & Eng. Ency. of Law, 383;. Story on Notes, § 139; Norton - on Bills and Notes, 110. The defendant Nathan' contends that plaintiff’s assignor took the note with notice of its accommodation character, and hence plaintiff cannot recover. The burden of proving this proposition is upon the defendant (Mechanics & Traders’ Bank v. Livingston, 6 Misc. Rep. 81, and citations), and, to my mind, he has failed in such proof; but assuming that his evidence upon this point is sufficient, still as the note was received by plaintiff’s assignor before maturity and for value, and as no diversion or fraud was pleaded or proved, his mere knowledge of the accommodation cannot impair plaintiff’s right to enforce it. Commercial Bank v. Norton, 1 Hill, 501-507; Grant v. Ellicott, 7 Wend. 227; Seneca Bank v. Neass, 3 N. Y. 442; Archer v. Shea, 14 Hun, 493; Arnson v. Abrahamson, 16 Daly, 72. As such right of action was perfect in plaintiff’s assignor the plaintiff succeeded thereto, although the note was assigned to him after maturity. Britton v. Hall, 1 Hilt. 528; Williams v. Matthews, 3 Cow. 252; Miller v. Talcott, 54 N. Y. 114; Weems v. Shaughnessy, 70 Hun, 175; Norton on Bills and Notes, 202, 203, and citations. It follows, therefore, that plaintiff is entitled to -judgment against the defendants for the sum of two thousand seven hundred and sixty-six dollars and forty-seven cents ($2,Y66.4Y), with costs, and an extra allowance of 5 per centum upon the sum recovered.

Ordered accordingly.