Niebergall v. A. B. A. Contracting & Supply Co.

24 A.D.2d 799, 263 N.Y.S.2d 589, 2 U.C.C. Rep. Serv. (West) 1163, 1965 N.Y. App. Div. LEXIS 3236

Opinion

Reynolds, J.

Appeal from a judgment of the Supreme Court, Columbia County, dismissing appellants’ complaint after trial. Appellants seek to recover $10,000 from the respondent Merle, a prior indorser of a note which the decedent Harvey K. Niebergall, a subsequent indorser, redeemed during his lifetime. While " indorsers are liable prima facie in the order in which they indorse; " *' * evidence is admissible to show that as between or among themselves they have agreed otherwise.” (Negotiable Instruments Law, § 118, see, also, Uniform Commercial Code, § 3-414, subd. [2].) The trial court has found that there was here sufficient evidence to establish that Merle signed solely as an accommodation to Niebergall to facilitate his securing bank acceptance of the loan and that it was understood between them that Merle would not be liable to Niebergall in case of default. We concur in this determination and also the finding of the court below that since there was no evidence to the contrary such intent was carried forward to renewals of the note (Callery v. Lyons, 292 N. Y. 15). Judgment affirmed, with costs. Herlihy, J. P., Taylor, Aulisi and Hamm, JJ., concur.