Opinion
February, 1936.
Present — Hagarty, Carswell, Davis and Johnston, JJ.; Taylor, J., not voting.
In an action on a note the defense was that there was no consideration; that the transaction was to take up a note of the defendant's mother by an absolute assignment of a bond and mortgage and a collateral guarantee bond made by certain parties, one of whom was an officer of the bank, in payment of the principal part of the mother's note; that at the same time the defendant was requested to give a note for the accommodation of the bank, a written agreement of the bank, signed by its president, was made to the effect that the note would not be enforced against her and the collection would be made out of the bonds and mortgage assigned. On the trial both parties moved for the direction of a verdict; and after deliberation the court directed a verdict for the defendant. All the facts and all the inferences to be drawn therefrom most favorable to the defendant must be deemed to have been accepted. ( Glanzer v. Shepard, 233 N.Y. 236, 242.) It was competent for the defendant to prove the conditional delivery of the note with the agreement that she should be exempted from liability. ( Higgins v. Ridgway, 153 N.Y. 130; Traders' Nat. Bank v. Laskin, 238 id. 535; Williams v. First Nat. Bank, 45 App. Div. 239; affd., 167 N.Y. 594; Chelsea Exchange Bank v. LaHiff, 219 App. Div. 434. ) There was no proof on the trial as to the powers conferred on the president by the by-laws, the proof of the plaintiff being directed to the conclusions of witnesses that the president did not have authority "to sign that letter." In connection with the whole transaction it is evident that the president did have such authority. ( Twyeffort v. Unexcelled Mfg. Co., Inc., 263 N.Y. 6. ) In any event, the bank accepted the benefit of the transaction and cannot now be heard to question the president's act as ultra vires. ( Appleton v. Citizens' Central Nat. Bank, 190 N.Y. 417, 420; Mutual Life Ins. Co. v. Stephens, 214 id. 488; American Surety Co. v. Philippine Nat. Bank, 245 id. 116; Markson v. Markson's Furniture Stores, Inc., 267 id. 137.) Judgment unanimously affirmed, with costs.