GFROEHNER v. McCARTY

GFROEHNER v. McCARTY. City Court of Brooklyn; General Term, December, 1876. Mahkied Woman.—Indohsement.—Pleading. A complaint by payee against indorser sufficiently shows that defendant indorsed to give credit with the maker, if it alleges that, at the time of making the note, defendant indorsed it for the purpose of giving credit thereto, and that it was delivered so indorsed to the plaintiffs. In an action against a married woman as indorser, an allegation that she had a separate estate, and that, by indorsing the note as alleged, she intended to and did charge her separate estate with the payment thereof, and that the consideration of the note went for the benefit of her separate estate, is sufficient. Appeal by defendant from judgment overruling demurrer to complaint. This was an action by Louis P. Grfroehrer, and others, against Jacob and Jennie Shepard, to recover the amount of a promissory note, made by the defendant, Jacob Shepard, payable to the order of the plaintiffs, and indorsed by the defendant, Jennie Shepard, at the time the note was made. The allegation of the complaint in respect to such indorsement is as follows: “That at the time of making the said note, the defendant, Jennie Shepard, was a married woman, and the wife of the defendant, Jacob Shepard, and was and is seized and possessed of a separate estate ; and at the time of the making of said note, and for the purpose of giving credit thereto, said defendant, Jennie Shepard, indorsed said note, and in and by said indorsement she intended to and did charge her separate estate with the payment thereof, and that the consideration of said note went for the benefit of her said separate estate.” Tlie defendant, Jennie Shepard, demurred to the complaint, upon the ground that it did not state facts sufficient to constitute a cause of action. The decision was for the plaintiffs, overruling the demurrer of said defendant. The defendant, Jennie Shepard, appealed from the order overruling demurrer and the judgment entered thereon. W. L. Fowler, for appellant. I. An indorser of a note payable to the order of another, is presumed to have intended to become liable, as second indorser, and is not liable upon the note to the payee, who is supposed to be the first indorser (Herrick v. Carman, 12 Johns. 159; Tillman v. Wheeler, 17 Id. 326; Moore v. Cross, 19 N. Y. 227; Bacon v. Burnham, 37 Id. 614; Lester v. Paine, 39 Barb. 616; Phelps v. Vischer, 50 N. Y. 69; Coulter v. Richmond, 59 Id. 478). II. Plaintiffs can not recover unless proof, aside from the note, be given that the defendant indorsed the note for the purpose of giving the maker credit with the payees, or for the purpose of becoming surety to the payees for the maker. As between the payees and indorser there must be a privity of contract (Woodruff v. Leonard, 1 Hun, 632, and cases cited above). William B. Hurd, Jr. (Fisher & Semler, attorneys), for respondent. I. No answer is interposed ; the judgment is therefore not appealable (Flake v. Van Wagenen, 54 N. Y. 25 ; Innes v. Purcell, 58 Id. 388). II. The allegation “ for the purpose of giving credit thereto,” is sufficient to charge the defendant as a surety, and to justify parol evidence (Smith v. Smith, 37 N. Y. Super. Ct. [5 J. & S.] 203 ; Moore v. Cross, 19 N. Y. 227; Coulter v. Richmond, 59 Id. 478). III. The allegations as to coverture, charging separate estate, and the consideration are sufficient (Yale v. Dederer, 18 N. Y. 265; Manhat. Brass Manuf. Co. v. Thompson, 58 Id. 80). [MAJORITY — By the Court.—Reynolds, J.] By the Court.—Reynolds, J. The appellant is right in the position, that as a general rule the indorser of a note payable to the order of another, is presumed to have intended to become liable as second indorser, and is not liable upon the note to the payee, who is supposed to be the first indorser. But this presumption may be rebutted by showing that the indorsement was made to give the maker credit with the payee; in which case the party so making it became liable as first indorser (Coulter v. Richmond, 59 N. Y. 478). That is what is substantially alleged in the complaint in this action. It is stated that the defendant, Jennie Shepard, at the time of the making of the note, indorsed the same for the purpose of giving credit thereto, and that said note was delivered so indorsed to the plaintiffs. In such connection, the allegation that the indorsement was for the purpose of giving credit to the note, must mean that it was to give the maker credit with the payee, that is, she became security for the maker. The case is thus brought within a line of decisions, one of which is cited above. The further allegations of the complaint show the consideration for the contract thus made by said defendant, and that the contract was made in such form as to bind her, a married woman. It is alleged that the consideration of the note was for the benefit of her estate, and that by the indorsement she charged her separate estate with the payment of the note. These ! facts, if proved, establish her liability (See Yale v. Dederer, 18 N. Y. 265 ; 22 Id. 450; Owen v. Cawley, 36 Id. 600 ; Ballin v. Dillaye, 37 Id. 35). The judgment should be affirmed. McCue, J., concurred.