Bromley v. Walker

51 Barb. 203, 1868 N.Y. App. Div. LEXIS 29

• Court: New York Supreme Court
• Decided: March 2, 1868
• Status: Published

Opinion

By the Court, E. Darwin Smith, P. J.

If it was necessary to hold that the plaintiffs received the note in question from Garrison, in the ordinary course of business, and for value, I should have some doubts whether the finding of the referee on that point could be sustained. Spencer purchased the note of Garrison with the checks of these plaintiffs; but the plaintiffs affirmed the trade, and took the note, and have possession of it, and the money paid by Spencer -for it, was their money.

From these facts, if Garrison could give a good title to the note, I think the referee might find the title in the plaintiffs, and that his finding on that point cannot be disturbed.' They, had all the title Garrison had, at least, and that is sufficient to maintain the action, if the defendant had no defense to it, as against Garrison.

The defendant clearly made out a good defense; to the note, as against the original payee, Van Allen; but, according to the present tenor of the cases, I think he made out no defense, as against Garrison.

The referee finds that Garrison received this note of Van Allen before the maturity of the note; that Van Allen sold and delivered it to him, and received therefor $100 in cash and his own note for $100 principal, and upon his giving a note for the interest accruing on his note then surrendered; and that Garrison took the note in good faith, without notice of the facts, &c. This brings the case within the cases of Stettheimer v. Meyer, (33 Barb. 216,) and Brown, executor, &c. v. Leavitt, (31 N. Y. Rep. 113,) and within the principle decided in Young v. Lee, (2 Kern. 554.)

It is too late, after these cases in the Court of Appeals, to hold that the equities of the party who takes negotiable paper before maturity, in good faith, and pays for it, or pays part of the consideration therefor, by the surrender and extinguishment of the note, or other security, for a debt due to him from the assignor or previous holder of the paper transferred, are not superior to those of the original maker or indorser of such paper.

[Monroe General Term, March 2, 1868.

E. D. Smith, Johnson and J. G. Smith, Justices.]

Garrison here paid $100 in cash, and gave up and surrendered the note of Van Allen for $100 besides. This made him a bona fide holder of the note in suit, and the judgment must, therefore, he affirmed.

Judgment affirmed.