Clark v. Phillips

21 How. Pr. 87

• Court: New York Supreme Court
• Decided: November 15, 1860
• Status: Published

Opinion

The plaintiff in his complaint sets up that the .defendants on December 21st, 1859, gave their note to Messrs. Benedict & Farnam for $1000, payable in three months, and that Benedict & Farnam indorsed the note, and delivered it to the plaintiff. The defendants claimed that the note was made for the accommodation of Benedict & Farnam, who were largely indebted to them; that it was prosecuted in the name of the plaintiff, but in reality for the benefit of Benedict & Farnam, and had been obtained by them from the Hatter’s Bank of Danbury, and that it had been amply secured there by their collaterals, and discounted for their benefit. It appeared in evidence that it was originallj7' an accommodation note; that the plaintiff received it after it was overdue on an account, to apply what he should collect; and the cashier of the Hatter’s Bank testified that it had been discounted by the bank, and that it was not paid to his knowledge, and that one of the directors had brought it to New York; that he did not know whether the bank owned it, but that it had a receipt for it.

The court held that the action could not he sustained., and that it should have been prosecuted by the Teal owner and holder of the note.