Kelly v. . Burroughs

Danforth, J. We think the appeal must fail. Conceding that both indorsers became so at the request, and for the accommodation of the maker, the defendant was still liable, as first indorser, to the plaintiff, as second indorser, and when the latter paid the amount of the note to the bank, and took it up, he became a holder for value, and entitled to indemnity from the defendant. Concerning the facts there was no dispute, and consequently no occasion to present them to the jury. The mere fact that the plaintiff, who testified to important particulars, was interested was unimportant in view of the fact that there was no conflict in the evidence, or any thing or cir *96 cumstance from which an inference against the fact testified to by him could be drawn. The cases cited by the appellant lack this element, while Lomer v. Meeker (25 N. Y. 361) sustains the ruling of the trial court. It is claimed, however, by the appellant that the plaintiff was improperly allowed to testify to the transaction between himself and Evans. Evans was dead, and the contention is put upon section 829 of the Code. I am unable to perceive that the defendant is of the class of persons protected by that section. The other exception seems to have neither substantial nor technical merit. The defendant suffers from a relation to the note, which, at the request of Evans, he voluntarily assumed, and not from any error of the court in enforcing his liability. We think the judgment should be affirmed. All concur. Judgment affirmed.