Boyd v. . Cummings

17 N.Y. 101

• Court: New York Court of Appeals
• Decided: March 5, 1858
• Status: Published

Opinion

Strong, J.

When the motion for a nonsuit was made, the proofs were wholly insufficient to impeach the prima facie consideration of the note, or of its transfer to the plaintiffs. It appears that the note was indorsed for the maker, and that the maker negotiated it, button what terms it was indorsed or negotiated there was no evidence. The motion was therefore properly overruled.

In regard to the decision on the whole evidence, the facts are that the plaintiffs held a valid judgment against Mackay for the collection of which proceedings against him supplementary to execution were pending; that the note in question was made by Mackay, and indorsed by the defendant for his accommodation, upon the representation of Mackay that he wanted to pay part of the amount to the plaintiffs for barrels, and use the rest in his business ; that Mackay delivered the note to the plaintiffs, who received it under an agreement that it should be held as security for the judgment, and that the supplementary proceedings should be discontinued, and that thereupon those proceedings were discontinued. Upon these facts it is clear that the plaintiffs took the note Iona fide, and for value. The discontinuance of the supplementary proceedings was ample consideration for the transfer to them. (Story on Cont., §§ 435-442 ; Seaman v. Seaman, 12 Wend., 382.)

It does not appear that any restriction was imposed upon the maker by the indorser in regard to the use to be made of the note; if there had been the plaintiffs having no notice of it, their rights would not be affected by it. (Seneca County Bank v. Neass, 3 Comst., 442; Wardell v. Howell, 9 Wend., 170; Small v. Gavit, 1 Denio, 183.)

All the judges concurring,

Judgment affirmed.