Chesebrough v. . Tompkins

New York Court of Appeals

Chesebrough v. . Tompkins

45 N.Y. 289, 1871 N.Y. LEXIS 138

DecidedApril 4, 1871

StatusPublished

This text of 45 N.Y. 289 (Chesebrough v. . Tompkins) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Chesebrough v. . Tompkins, 45 N.Y. 289, 1871 N.Y. LEXIS 138 (N.Y. 1871).

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Opinion

Eapallo, 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 take 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 nonsuited 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 *291 necessary to support his decision, be intended that he granted tiie 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.

Allen, Grover, and Folger, JJ., concur; Oh. J. and Peckham, J., do not vote; Andrews, J., not sitting.

Judgment affirmed.

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Eapallo, 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 take 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 nonsuited 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 *291 necessary to support his decision, be intended that he granted tiie 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.

Allen, Grover, and Folger, JJ., concur; Oh. J. and Peckham, J., do not vote; Andrews, J., not sitting.

Judgment affirmed.

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Bluebook (online)

45 N.Y. 289, 1871 N.Y. LEXIS 138, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chesebrough-v-tompkins-ny-1871.