James Pryor, Respondent, v. Henry L. Storke, Appellant

James Pryor, Respondent, v. Henry L. Storke, Appellant. Pleading—admissions as to the plaintiff’s possession, before maturity, of an accommodation note. Where an allegation contained in the complaint in an action against the maker of a promissory note, to the effect that the note indorsed by the payee “ came for value before maturity lawfully into the possession of the plaintiff,” is admitted by a failure to deny it in the answer, an allegation contained in the answer that the note was made by the defendant for the accommodation of the payee, who was to “pay the same at maturity, as the plaintiff well knows,” does not constitute a defense, as the knowledge of the plaintiff at the time when the answer was interposed is immaterial. Semble, that the plaintiff being a holder for value before maturity, the fact that he took the note with knowledge that it was accommodation paper would not defeat a recovery against the accommodation maker. A subsequent allegation in the answer, to the effect that the plaintiff took the note after maturity, with knowledge that it was accommodation paper, is not objectionable as being inconsistent with the admission referred to, where it appeal's that the allegation in question had no relation to the plaintiff’s original possession, but referred to the fact that the plaintiff, after becoming possessed of the note, had transferred it to another, and that long after maturity he paid the estate of the transferee the amount due upon the note and took it back. Appeal by the defendant, Henry L. Storke, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Hew York on the 15th day of April, 1898, upon the verdict of "a jury, and also from an order bearing date the 11th day of April, 1898, and entered in said clerk’s office, denying the defendant’s motion for' a new trial made upon the minutes. Thomas Bracken, for the appellant. Benjamin F. Edsall, for the respondent. [MAJORITY — Barrett, J.:] Barrett, J.: This action is against the defendant as the maker of a promissory note. The complaint alleges, and the answer expressly admits, the making of the note and its indorsement by the payee, one Beardsley. The complaint further alleges, and the answer admits by not denying, that the note so indorsed “ came for value before maturity lawfully into the possession of the plaintiff.” The answer then avers that the note was made by the defendant for the accommodation of the payee, who was to “ pay the same at maturity as tho plaintiff well knows.” This was no defense. What the plaintiff, well knew when the answer at as interposed is quite immaterial.. But even were the knowledge alleged contemporaneous with the original transaction, this defense would have been equally bad. Having admitted that the note came into the plaintiff’s possession for value before maturity, the defendant was liable, though the-plaintiff knew when he took it that it was accommodation paper. The answer further avers that the plaintiff, Avith knowledge of the fact that the note was accommodation paper, came into possession of it long after maturity. Having admitted that the note came into the plaintiff’s possession for value before maturity, the defendant was not at liberty to deny the fact, or to prove any state of facts, inconsistent with such admission. (Fleischmann v. Stern,, 90 N. Y. 114.) The allegation in question, however, had no relation to the plaintiff’s original possession. It seems that the plaintiff, after he originally became possessed of the note “ for value before-maturity,” turned it over to one Mulligan. Long after maturity, he paid Mulligan’s estate what was due upon it and then took it back. This is 'what 'the defendant’s allegation refers to. Thus the allegation is entirely consistent with the admission. Upon this state of the pleadings, the only issue was the ownership of the note, and that was abundantly established. The learned trial judge should have directed a verdict for the plaintiff. No harm was done, however, by the taking of superfluous testimony and the submission of unnecessary questions to the jury, except in the consumption of time, for the jury gave the plaintiff the verdict he was entitled to. The exceptions to the exclusion of evidence and to certain refusals to charge are trivial in themselves and, as the case stands upon the pleadings, entirely unimportant. The appeal is without merit, and the judgment and order denying the defendant’s motion for a. new trial should be affirmed, Avith costs. Yan Brunt, P. J., Rumsey, Ingraham and McLaughlin, JJ.,, concurred. Judgment and order affirmed, with costs.