Flint v. Schomberg

Daly, Eikst Judge. So far as the facts can be collected [534] from tbe affidavit of tbe defendant, it would appear that be made tbe note to tbe order of Porter & Co.; that Porter & Co. .procured tbe plaintiffs to indorse it for a commission of two and •a half per cent., to enable them to get it discounted; that it was discounted by a bank, and that the maker and payees having ■failed to pay it, tbe plaintiffs, after it was protested, paid it to tbe bank, and now bring action upon it against tbe defendant, .the maker. Upon such a state of facts, it is, I think, very clear, that tbe claim which it is averred in the answer that tbe maker has, against the payees, is no defence to tbe action. Tbe plaintiffs, having paid tbe note, were subrogated to tbe rights of tbe bank. Tbe bank, when the note fell due, were holders for value. There couli^be no doubt but that they could recover against tbe maker, and that bis claim against the payees would be no defence to their action, and it is equally no defence to tbe plaintiffs’ action, they having succeeded to whatever rights the bank bad,.as holders, when the note fell due. The transaction between Porter & Co., the payees and the plaintiffs, is wholly immaterial in this action. If the plaintiffs ■bad loaned Porter & Co. the money on the note, the case of Steele v. Whipple (21 Wend. 103) might have been in point, (Ketchum v. Barber, 4 Hill, 234); but the fact that they put their name upon the note for a commission of two and a half per cent. ,-to enable Porter & Co. to get it discounted by somebody else, which would appear to have been tbe transaction, was not, as between them and Porter & Co., a usurious agreement. The .motion for- a commission was therefore properly denied, as it appeared by the defendant’s affidavit that he had no available defence against the plaintiffs’ action. Order of special term affirmed.