On appeal from the Supreme Court.
For the appellant, Cassman & Gottlieb (Harry Cassman, of counsel).
For the respondent, Platoff & Platoff (John N. Platoff, of counsel).
The opinion of the court was delivered by
FREUND, J. This is an appeal from a directed judgment in favor of the plaintiff against the defendants.
The Hudson County National Bank instituted suit against Alexander Furs, Inc., and Alexander Kogan on a certain promissory note, dated April 17th, 1944, for the sum of $15,000 payable to Fox Fur Buying Company, or order, on June 1st, 1944, at the offices of the appellant's attorneys. The complaint alleges that prior to the delivery of said note to the payee, the defendant Alexander Kogan endorsed said note and that prior to maturity the payee endorsed said note to the plaintiff for value. The complaint further alleges that on the due date the note was presented for payment at the place where it was payable but was not paid and was protested for nonpayment. The plaintiff demanded payment of the proceeds.
The defendants filed an amended answer admitting that Alexander Furs, Inc., was the maker of the note, that Alexander Kogan endorsed the note prior to its delivery to Fox Fur Buying Company, the payee, but deny that the payee prior to maturity endorsed the note to the plaintiff for value, and further deny that the note was presented for payment on the due day at the place where it was payable, but admit that the note was not paid. The defendants also deny that the note is the property of the plaintiff and deny the amount alleged to be due and owing from the defendants to the plaintiff.
The defendants allege by their defenses and counter-claim that the plaintiff had knowledge, prior to the plaintiff's purchase of said note, of a written agreement made between the defendant Alexander Furs, Inc., as seller and Rosalie L. Fox and Esther Lillienthal, as buyers, of certain fixtures and a lease, and of a written assignment executed by Alexander Furs, Inc., to Fox Fur Buying Co. assigning the consideration mentioned in said written agreement, and that the buyers in order to induce the seller to enter into said agreement agreed to and did loan the seller the sum of $15,000 on a promissory note. By reason of the foregoing, the defendants charge that the plaintiff took the note in suit subject to the conditions stated in said agreement and assignment. The
defendants claim to have suffered damages, as the buyers under the said agreement notified the defendant, Alexander Furs, Inc., prior to the maturity of said note, that they would not consummate the agreement of purchase, nor pay the sum of $15,000 agreed to be paid under said agreement.
On the trial, the plaintiff proved the note, the amount due and then rested, thereby making a prima facie case.
The defendants then proceeded to present their proof by calling the defendant Alexander Kogan but elicited no evidence from this witness to substantiate the defenses or counter-claim. On the questions of good faith of the plaintiff and of its being a holder in due course, the defendants called as its witnesses the note teller of the plaintiff bank, the president of the bank and the attorney of the payee who negotiated the sale of the note to the plaintiff. Their testimony revealed that on May 20th, 1944, the plaintiff purchased or discounted the note in suit. These defense witnesses also testified that the proceeds of said note were credited to the account of the Fox Fur Buying Company. No further material evidence was submitted.
The appellants have stated a number of grounds of appeal -- but brief only two points, so it must be assumed that the grounds of appeal not briefed have been abandoned. The two points briefed by the appellants are (1) the note was not discounted by the plaintiff in good faith and therefore the plaintiff was subject to the defenses which the defendants would have against the original payee and ...