Crandall v. Schroeppel

E. Darwin Smith, J. None of the grounds of error stated in the notice of appeal, served upon the justice, are sufficient to raise any question for review, according to the cases of Delong v. Brainard, 1 N. Y. Sup. 1, and Nolan v. Page, id., addenda, 3, except the ground that the justice erred in denying the motion for a nonsuit made by the defendant at the trial. This specification was, I think, sufficient to raise the question presented on the motion for a nonsuit before the justice. The ground of error thus stated must be deemed to refer to the grounds stated and urged on the motion for the nonsuit. One ground stated for such motion was, that the note upon which the action was brought is now held by the administrators of Charles Crandall, deceased, and they claimed to own the same, and, from the facts proved, they are the owners. The county court doubtless reversed the judgment of the justice on this ground, it appearing that the note was negotiable, being payable to the plaintiff or bearer, and was in the hands of the administrators named, who claimed title to it and produced it at the trial under protest, claiming to own it. Upon these facts appearing I think the plaintiff should have been nonsuited. He had not possession of the note and it was not lost. A party paying a promissory note or negotiable bill is entitled to the delivery of such note or bill on payment, or its production, that it may be discharged or destroyed in his presence. Bank of Utica v. Smith, 18 Johns. 240. It was held in Freeman v. Boynton, 7 Mass. 486, that a demand of payment of a promissory note of the maker, with a view to charge the indorser, was not good, because the person making the demand had not the note with him to deliver it up on receiving-payment. Judge Parker in the opinion said : “ The debtor may well refuse to pay, on the ground that he has a right to have his obligation or contract, or to see it canceled when he is called upon to discharge it.” And this rule should especially apply to negotiable securities. The judgment rendered by the justice did not necessarily extin [80] guish this note, for the plaintiff could not produce it to the justice for cancellation or give a valid discharge of it, which would have protected the defendant from another suit and judgment upon it by the holder, nor would the payment of the judgment rendered by the justice have that effect. The title to the note could not be judicially settled in this suit, because the administrators of Charles Crandall are not parties to the action, and could not be bound by any decision of the justice on that point, nor could the plaintiff by his own testimony establish his title to the note as against such administrators. The case of Van Alstine v. Nat. Com. Bank of Albany, 7 Trans. App. 241, in principle I think" settles this question. That was an action upon a draft against the drawers, held adversely, as with the note in this case. The court of appeals held that the plaintiff could not recover without the production of the draft at the trial, and could not throw upon the bank the burden of a litigation between the conflicting parties, claiming such draft, and could not recover upon it as a lost draft. The judgment of the county court reversing that of the justice should be affirmed. ° Judgment affirmed.