Coopersmith v. Maunz

Crosby, J. .These two actions were tried together by stipulation. Both cases' are, so far as this appeal is concerned, governed by the same law and the same facts. The cases were tried once before and in that trial, as in the last trial, the jury gave defendants the verdict. The actions are brought upon trade acceptances issued by the defendants to the Otis Oil Burner Corporation, and, by the latter, negotiated and indorsed over to the plaintiff for value and before maturity. Judgments in favor of defendants, as a result of the first trial, were reversed by this court upon the ground that the trial court charged, in substance, that it was the duty of the plaintiff to make such inquiry as a careful man would make to learn whether there was any defect or infirmity in the trade acceptances before he purchased them. (Coopersmith v. Maunz, 227 App. Div. 119.) Upon this trial, as upon the former, there was evidence to warrant the jury’s finding that the trade acceptances were procured by the Otis Company from defendants by means of fraud. But, even so, the plaintiff, purchasing them for value and before maturity, could recover on them unless he “ had actual knowledge of the infirmity or defect, or knowledge of such facts that his action in taking the instrument amounted to bad faith.” (Neg. Inst. Law, § 95.) This is so, because we held upon the former appeal (Coopersmith v. Maunz, supra) that the trade acceptances were negotiable paper. Infirmity in the instruments having been proven by defendants the burden was cast upon plaintiff to prove that he was a holder [797] in due course. (Neg. Inst. Law, § 98.) Upon the former trial plaintiff testified that he had no knowledge such as is mentioned in section 95, and in this last trial he gave the same testimony and he is corroborated by two disinterested witnesses, Frankel and Korn. The question here is whether or not there is any evidence to the contrary sufficient to make a jury question upon the subject of plaintiff’s knowledge of the kind mentioned. I am unable to find any such evidence in the record. It must be conceded that plaintiff bought the paper at a large discount — ten per cent on paper payable in two months. This alone is not enough. (Second National Bank v. Weston, 172 N. Y. 250.) (See, also, Eisenberg v. Lefkowitz, 142 App. Div. 569.) The only other evidence in the record that is even claimed to show that plaintiff was not a taker of the paper in due course, is his own admission that he hired an accountant to go through the books of the Otis Company, and that the books showed a weak financial structure, and that it was apparent that the company was doing a rather large business on too small a capital. Plaintiff also admitted, in substance, that he knew he was taking paper that would not be attractive to banks. I do not regard these facts as sufficient to put plaintiff in the light of a taker in bad faith. Finding, in the record, no substantial evidence to dispute plaintiff’s evidence that he took the paper in good faith, the judgment should be reversed on the law, with costs, and plaintiff’s motion for a direction of a verdict for the amount demanded in the respective complaints should be granted, with costs. All concur, except Taylor and Thompson, JJ., who dissent and vote for affirmance in an opinion by Taylor, J.