On appeal from the Supreme Court.
For the appellants, Jacob S. Glickenhaus.
For the respondent, David T. Wilentz.
The opinion of the court was delivered by
CAMPBELL, J. This was an action by an endorser against other endorsers upon a note, upon which the signature of the plaintiff appeared in the position of second in order of endorsement and his action against endorsers whose names appeared upon such instrument subsequent to his.
The note in question appears to be a second renewal. The original note was for $4,000; the first renewal being for $3,500; and, the note in question for $3,000.
The maker of the instrument and the plaintiff-respondent, upon maturity of the note, the same not having been paid, were sued by the holder and judgment recovered against them, which judgment being paid by respondent, who took an assignment thereof, then brought the present action against all other endorsers, and in such action recovered a judgment which is the subject of this appeal.
Two grounds for reversal are urged:
1. That the trial court erred in refusing to strike out the complaint upon the ground that the same set forth no cause of action.
The argument under this point is that section 68 of the Negotiable Instruments act (Pamph. L. 1902, p. 583; 3 Comp. Stat., pp. 3732, 3743), providing that "as respects one another, endorsers are liable prima facie in the order in which they endorse; but evidence is admissible to show that as between and among themselves they have agreed otherwise * * *," requires that the complaint, to raise such an issue, shall aver the specific agreement, in that respect, intended to be relied upon.
Paragraph 5 of the complaint is in the following language:
"Said note is now the property of the plaintiff who has demanded payment from the defendants who are prior endorsers to the plaintiff, but the whole of said note is still due and owning." To the complaint a copy of the note is attached showing the endorsements and the actual position that each bears to the others. This is sufficient and so this court has determined in Schneider v. Mueller, 82 N.J.L. 503, ...