Gardner v. Gordon

16 Bosw. 369

• Court: The Superior Court of New York City
• Decided: July 3, 1858
• Status: Published

Opinion

Bv the Court.

Hoffman, J.

—The action is upon two promissory notes made by the defendant. One of them was payable to Isaac M. Twitchings, was by him indorsed and came into the possession of the plaintiff without further indorsement.

Abraham Brown was examined as a witness for the plaintiff, and proved that the note had been held by him and that payments had been made upon it by the defendant. This was to take the case out of the Statute of Limitations.

The defendant was then offered as a witness on his own behalf, on the ground that Brown was the assignor of a thing in action. He was rejected, and an exception taken.

The case of Watson v. Bailey, (2 Duer, 512,) is decisive upon this question, and sustains the ruling of the Judge. Brown was clearly not an assignor within the meaning of the Code, from the mere fact that the note passed through his hands.

The question upon the other note is only varied by the fact that Kipp, the witness to prove payments, with a similar view to avoid the statute, had indorsed the note. The case of Anderson v. JSusteed, (5 Duer, 485,) settled this point also. An indorser is not an assignor within the proper construction of the 899th section of the Code.

*

Judgment affirmed with costs.

Porter v. Potter. 18 N. Y. Rep., 52.