Chesebrough v. Tompkins

10 Abb. Pr. 379

• Court: New York Court of Appeals
• Decided: April 15, 1870
• Status: Published

Opinion

By the Court.—Rapallo, J.

The nonsuit was granted on the ground that the plaintiff showed no title to the note. The only witness called to prove the authority of Brown to indorse and transfer the note, was Palmer, the payee.

He testified, in substance, that Brown was authorized by him to sell certain patent rights, and to receive notes in payment, and transfer them so as not to make him (Palmer) liable in any way. On cross-examination, however, he testified that he furnished Brown with printed blank notes, all payable to bearer, to be used in that business; that Brown had authority to take and transfer such notes, and no others; that he had no authority to make notes payable to order, and write Palmer’s name upon them. On further cross-examination, it appeared that Brown’s authority was in writing.

The writing, though called for, was not produced, and the defendant moved on that ground to strike out the oral evidence which had been given as to Brown’s authority.

The case does not disclose what disposition was made of this motion. But inasmuch as the judge non-suited the plaintiff on the ground of want of title, and held that there was no evidence to submit to the jury on that point, it would, if necessary to support his decision, be intended that he granted the motion to strike out, and regarded the oral evidence of authority as excluded.

In that view of the case, there was no evidence whatever of title to the note, and the nonsuit was properly granted.

The judgment should be affirmed with costs.

Judgment affirmed.