LUFT against GRAHAM

LUFT against GRAHAM. New York Common Pleas, Special Term; October, 1871. Calendar Practice.—Motion to Open Default.— Examining Merits.—Liability of Indorser to One Taking Note on the Credit of the Indorsement. After a default, taken by respondent on an appeal at general term, has been opened on condition that the cause be restored to the calendar, and argued at that term, if the appellant neglects to comply with the condition, it is proper for the respondent to procure the cause to be restored to the calendar; and a second default taken by him when the cause is regularly called, is not irregular, although the appellant had no notice that the cause was on the calendar a second time.' The case of Moore v. Cross, 19 N. Y., 227,—holding liable to the payee, one who indorses a note to give the maker credit with the payee,—followed. On a motion to be relieved from a second regular default on appeal, the court will look into the merits, and deny the motion, if the appeal-appears to be without merits. Motion to open default on appeal. John Luft and others sued Charles Graham and others, on a promissory note. The note was made by the.defendant McKenzie, and payable to the order of the plaintiffs, and was indorsed by the defendant Graham, for the purpose of giving credit to McKenzie with the plaintiffs, under the circumstances stated in the opinion. The plaintiffs having recovered judgment, an appeal was taken, and the cause was put upon the calendar of the general term. A default was taken by respondent, at the May general term, which was opened by consent, the case to be restored to the calendar and argued that term. The case was so restored by the respondent’s attorney ; and the appellant and respondent waited during the May term for the appeal to be heard. The case came within three or four of being reached, when the general term adjourned. The next general term (October), respondent’s attorney, not finding the case upon the calendar, called the attention of the clerk to the fact, who discovered his mistake, and placed the appeal upon the calendar, No. 147c. This was done after the calendar of the general term had been called through. The appellant’s attorney being present at the calling of the calendar, and not hearing the case called, concluded it was not upon the calendar, and went away. Several days afterwards the appeal was reached, and upon the refusal of the judges to postpone so that appellants could be notified, or to let the cause go over the term, a second default was taken, and judgment entered, which appellants now moved to vacate for irregularity upon the grounds that the case was not on . the calendar for said term on the first day of the term ; that said cause was not regularly placed.on the calendar for said term, no consent having been obtained and no notice of motion to place said cause on the calendar having been given; and no motion to place said cause on the calendar for said term having been made. John L. & William Lindsley, for defendants, appellants. George F. Langbein, for plaintiffs, respondents; Cited section 364 of the Code of Proceedure; and contented that even if the default should be opened as a matter of justice, there were no merits in the appeal, which a glance at the return of the justice would disclose ; and cited Moore v. Cross (19 N. Y., 227), to show that there was no merit in the appeal. [MAJORITY — Robinson, J.] Robinson, J. It was the duty of the appellants to see that the cause was restored to the calendar of the general term, as part of the conditions upon which they were relieved from a former default. This they neglected to do, and respondent’s attorney, in accordance with that order, finding it omitted on the first day of the October general term, procured it to be so restored, and some days afterwards it was regularly called and a judgment of affirmance by default taken., I regard this action as regular ; and in consideration-of this being a second motion to be relieved, regard it but proper to look into the merits presented by the-justice’s return. The note upon which a recovery was had was given-by the defendant McKenzie to plaintiff, for repairs-they had done to his wagon, and on their refusal to surrender their lien on it except upon the security of a good indorser. Upon this consideration the note in suit was- given by McKenzie, with the indorsement of the appellants, a credit of two months being alloweed. Instead of the note being drawn to the order of appellants, it was in terms made payable to the order of the plaintiffs. The testimony warranted the justice, notwithstanding the form of the note, to find that the note was indorsed by the appellants for the accommodation of McKenzie, and for the purpose of enabling him to procure a release of his wagon from the lien. The appellants, though seeking to avail themselves of a legal cavil that their names would appear as second indorsers, and their private intention was to make an indorsement to strengthen the note, do not deny their knowledge of the object for which the note was given, nor do they pretend they communicated to plaintiffs any intention to limit their responsibility, as accommodation indorsers for McKenzie, with the sole view of obtaining on the indorsement a release of the property from respondents’ lien. Under such circumstances, their liability is well established by the court of appeals, in Moore v. Cross (19 N. Y., 227). Their appeal is without merit, and this application to be again relieved from a default must be denied, with ten dollars costs.