Sigmund Isaacson, Appellant, v. Lizzie Etkin, Respondent, Impleaded with Louis Etkin, Defendant

Sigmund Isaacson, Appellant, v. Lizzie Etkin, Respondent, Impleaded with Louis Etkin, Defendant. First Department, December 29, 1911. Debtor and creditor — money loaned to two persons, but delivered to one. Money may be loaned to two or inore persons, so as to impose an obligation on each of them to repay the lender, although, pursuant to the agreement, the money loaned is delivered to but one of such persons, or even to a third party. The persons primarily liable to repay a loan are those to whom it is agreed that the loan is made,. regardless of who actually receives the money. In an action against a husband and wife to recover money alleged to hav'i been loaned to both of them, where plaintiff’s testimony shows that wife said, “We promise to pay you at the end of the year with your six per cent interest, ” that plaintiff stated he loaned it to both of them and delivered the check representing the loan to the wife, a question of fact is presented as to her liability, although it appears that the check was indorsed by the husband and the proceeds used by him, and it is error to dismiss the complaint as to the wife. • Appeal by the plaintiff, Sigmund Isaacson, from a judgment of the Supreme Court in favor of the defendant Lizzie Etkin, entered in the office of the clerk of the county of New York on the 7th day of July, 1911, upon the dismissal of the complaint as to the respondent by direction of the court at the close of plaintiff’s case on a trial at the New York Trial Term. Jacob Manheim, for the appellant. Harry N. Selvage, for the respondent. [MAJORITY — Laixghlin, J.:] Laixghlin, J.: The plaintiff alleges that-on the 21st day of October, 1908, he “loaned and advanced to the defendants, at their request, the sum of $5,000, which defendants promised and agreed to repay to plaintiff at the end of one year from said day,” with interest; that they had -failed and refused to repay.the same, and he demands judgment for the amount of the loan, together with interest and costs. The answer of the defendant Lizzie Etkin is in effect a general denial. On the trial the plaintiff was the only witness. He testified, -in so far as material to the question presented for decision, that he and the defendant Louis Etkin, the husband of the other defendant, made a parol agreement to become copartners in the business of making cloaks for women; that plaintiff was to contribute $5,000 in cash as his share of the capital; that he met defendant Louis Etkin pursuant to appointment to consummate the arrangement, and had with him his own check drawn to the order of “L. Etkin ” for $5,000 for his contribution to the capital of the firm; that Louis Etkin stated .that he had changed his mind about going into partnership and that he had determined to go into business on his individual account, and proposed that plaintiff enter his employ at a salary of $40 per week and loan to him the $5,000. for one year; that plaintiff asked if-he gave the money “who will be good for it,” to which Etkin replied that his name would he good for it, and that his wife owned real estate and “ she is good for it,” and suggested that plaintiff loan the money to both of them and that they would both promise to pay him back the money at the end of a year with interest; that the respondent, who was in the next room, was then called in and her husband stated to her that he did not wish to go into partnership with plaintiff but wanted plaintiff to loan him “ the money ” for a year and to work for him for the same period at $40 per week, but that plaintiff “is thinking about his security,” and that he had assured plaintiff that his name was good for it, but had informed plaintiff that she owned real estate and “ can say good for the money,” and ' that plaintiff could “lend the money to both of us” if he did not wish to loan it to the husband alone; whereupon the respondent replied: “ Mr. Isaacson, you can be sure you will get the money at the end of the year with your six per cent interest; we promise to pay you at the end of the year with your six per cent interest; ” that plaintiff then said that he was loaning the money to both of them and asked if it was necessary to make over the check, and was informed by Louis Etkin that it was not, and that thereupon he delivered the check to the respondent. The initials of the defendants are the same. Respondent evidently delivered the check to her husband for he indorsed it and drew the money which he used in his business. The theory on which the complaint was dismissed as to the respondent evidently is, as it was the only ground of the motion, that the evidence failed to show that the money was loaned to both of the defendants. We are of opinion that that was a question of fact- for the jury. There is no merit in the contention that money can only be loaned to the party who actually receives and pursuant to the agreement uses it. It may be loaned to two or more although pursuant to the agreement under which the loan is made it is delivered to one of •them only or even to a third party. It may be immaterial to the lender who is benefited by the loan; but he is vitally interested in the question as to who become liable primarily to repay it and they are those to whom it is agreed that the loan is made regardless of what becomes of the money It follows, therefore, that the judgment should he reversed and a new trial granted, with costs to. appellant to abide the event. Ingraham, P: J., Clarke, Scott and Miller, JJ., concurred. Judgment reversed, new trial ordered, costs to appellant to abide event.