Holzman, Cohen & Co. v. Teague

156 N.Y.S. 290

Opinion

PHILBIN, J.

The complaint contains 13 causes of action, each on a separate promissory note, of which the plaintiff is the holder and the defendant the maker. The defendant sets up as a separate defense that he signed the notes merely in blank, and that while they were thus incomplete they were stolen, and that there has been no delivery thereof. The plaintiff put the notes in evidence, showed that the signature was that of the defendant, that plaintiff was the holder for value, and that the notes were unpaid. Plaintiff stipulated on the trial that the defendant would testify that the notes were merely signed in blank, were left on his desk, and were stolen by some one; that they were filled in without authority, although he intended to give such authority to one Boyer; that he never gave them to said Boyer; and that the latter never had them in his possession. The defendant testified personally that the notes, other than his signatures thereon, were -in the handwriting of the treasurer of the payee, to whom the defendant had never given any authority to fill in the said blanks. On plaintiff’s motion the court directed a verdict for plaintiff.

[1,2] It thus appears that the said notes were incomplete instruments, and had not been delivered, but were completed and negotiated without authority, and without any negligence on the part of the defendant. It follows that they did not constitute valid contracts in the hands of the plaintiff as against the defendant, whose signatures were placed thereon before delivery. Section 34, Negotiable Instruments Law; Linick v. Nutting & Co., 140 App. Div. 265, 125 N. Y. Supp. 93; Ledwich v. McKim, 53 N. Y. 307. Section 35 of the Negotiable Instruments Law does not apply to such an instrument as is described in said section 34, but refers only to a completed instrument. Schaeffer v. Marsh, 90 Misc. Rep. 307, 153 N. Y. Supp. 96.

Judgment reversed, with costs, and complaint dismissed, with costs. All concur.