Opinion
April Term, 1900.
Frank Sullivan Smith, for the appellant.
Austen G. Fox, for the respondent.
The decision of the Court of Appeals in this case ( Cheever v. Pittsburgh, etc., R.R. Co., 150 N.Y. 59) settled one question. There is nothing on the face of the notes in suit to charge the transferee thereof with notice of the fact that they had been wrongfully diverted by the president of the corporation by which they were made.
Notwithstanding this determination it was held by the Appellate Division upon the second appeal that there was evidence which should be submitted to a jury upon the question of the good faith of the transferee (Francis A. Brooks, of Boston) in taking the paper. ( 28 App. Div. 81.)
Upon the trial now under review this question of good faith has been resolved by the jury in favor of such transferee.
We think the proof is sufficient to sustain the finding of the jury in this respect.
In leaving this question to the jury we cannot perceive that the trial court erred in giving or refusing to give any instruction.
Since the review by the Appellate Division the answer has been amended so as to allege that the plaintiff was not at the time of the commencement of the suit, and is not now, the owner and holder of the promissory notes in controversy.
The averment of the complaint in regard to each of these notes is that it was indorsed and delivered by the payee named therein to M.S. Frost Son, who "delivered the same so endorsed to Francis A. Brooks, who took the same from them before maturity for value, in good faith and without notice; and that thereafter the said Francis A. Brooks, for value, transferred and delivered the said note to John Brooks, who thereafter, and before this action, assigned, transferred and delivered the same to the plaintiff, who is now the holder thereof."
We think that the transfer, assignment and delivery are sufficiently alleged so as to import a legal title in the plaintiff ( Oishei v. Craven, 24 Civ. Proc. Rep. 301, Superior Court of Buffalo, by HATCH, J.); and that the evidence in support of the allegation of the complaint in this respect was so supported by the proof as to justify the court in holding, as matter of law, that the plaintiff could maintain the action.
The case is discussed with exceeding elaboration in the briefs of counsel. All the points, except those which have now been touched upon, appear to have been necessarily involved in the decisions rendered upon the previous appeals. It seems to us that there is no error in the record of the last trial which affords just ground of complaint to the appellant, and that the judgment, which was the result of that trial, should be allowed to stand.
All concurred.
Judgment and order affirmed, with costs.