Opinion
April, 1909.
Isidor D. Morrison, for plaintiff.
Samuel A. Berger, for defendants.
The action is brought by a holder of a promissory note against the maker and indorsers thereof. The answers interposed by the defendant indorsers set up the defense of usury in the inception of the paper. It is alleged in the complaint and it appeared upon the trial that the indorsements were the usual accommodation or surety indorsements prior to delivery and negotiation of the paper for value. The note, therefore, had its inception, if any, in the consideration given therefor by plaintiff (Eastman v. Shaw, 65 N.Y. 522) and not before, and the issue arises therefore in legal effect as between the original parties thereto, and not as between a holder and an indorser as such, and the defense is available. Strickland v. Henry, 66 A.D. 23; Eastman v. Shaw, supra. Section 116 of the Negotiable Instruments Law applies to the latter class of cases and not to the former, and by its express terms the warranty by the indorser runs only to a holder in due course. Plaintiff is not such a holder (Strickland v. Henry, supra), nor were the defendants bound on the paper prior to its acquisition by plaintiff. For the same reasons the case of Horowitz v. Wallowitz, 59 Misc. 520, is not in point. Counsel for plaintiff in his brief refers to the defendant Lambeck as being in default, and urges that plaintiff was entitled to at least a verdict as against him. The matter is not before the court in any adequate way. While neither pleading was submitted nor counsel appeared in his behalf at the trial, he was present at the trial and testified. No inferences can be indulged in as to the character of his alleged default, if any. If the default was in pleading the verdict would have no bearing upon him and plaintiff's remedies are plain. Code Civ. Pro., §§ 1204, 1205. If the default was at the trial after pleading plaintiff could have preserved his advantage by seasonable motion, but instead thereof he chose to submit all issues upon all the evidence generally to the jury and he must abide by the verdict. Counsel should advise the court as to the fact, so that the minutes of the verdict may be correct.
Now, Laws of 1909, chapter 43.
Motion to set aside the verdict is denied.