Cogswell v. Hayden

By the Court, McArthur, J.: The allegation in the complaint being that Davidson “made, executed and delivered” the note, is not put in issue by the denial in the answer that he “ delivered” the note. Such a denial operates as an admission of the making and execution, facts which in law embrace and include a delivery. . The denial that the note was delivered to Cogswell must, we think, be regarded as immaterial. It was made payable to the order of Hayden, and whenever he indorsed it, as it is admitted he did, he became the first indorser. The only presumption that can arise from Cogswell’s indorsement is, that he intended to become second indorser. As in the case of Bacon v. Burnham (37 N. Y. 616), “it must be supposed, in the absence of any proof to the contrary, that perceiving the name of the payee in the note, he indorsed it on the presumption that the name of such payee, to whose order it was made payable, would also, at some time, appear on the note, for only thus would it become negotiable.” In the same case it was held that the locality of the names is immaterial; and whether the name of Cogswell should [24] appear above or below that of Hayden, or before or after his in point of time, would not change in any respect his position as second indorser. ^ It follows, therefore, that the denial that Cogswell indorsed the note subsequently to Hayden is frivolous. The denial that appellant, “for value received,” sold or transferred the said note to Barlow does not raise an issue, for the reason that the note might have been sold or transferred, and full value not have been received. ' The denial of indebtedness must, in this action, be treated as a conclusion of law, for none of the facts out of which the indebtedness is alleged to have arisen, are denied. As to the right of action, we regard it as a settled principle that an action may be maintained by a second indorser against a first indorser, for money paid on account of the note. (Wright v. Butler, 6 Wend. 283.) The fact that the parties indorsed for the accommodation of Barlow does, not, we think, change the rule as to their relative liability. They are governed by the rules applicable to indorsers generally. Judgment affirmed.