Misc.]

County Court, Onondaga County, March, 1896.

any event, the justice would have had the right to tax twenty-five cents for the service of the summons, and probably forty-five cents upon the theory that in any case the constable must necessarily travel a fraction of a mile in going, and a fraction of a mile in returning, and that the affidavit required only relates to traveling fees charged in excess of one mile. Whether the making of the affidavit required by section 3324 is a condition precedent to a recovery by a constable against a plaintiff who employed him is unnecessary to be decided, because I think the evidence of the defendant shows that the plaintiff is not entitled to recover more than forty-five cents for two miles traveled in any event. The defendant's evidence, in substance, was that he made the claim, in his conversation with the plaintiff relative to the amount to which the plaintiff was entitled, that he was only entitled to mileage for two miles, and no explanation justifying an additional charge at that time was testified to, and no evidence was given by the plaintiff upon the trial of this case, except as before stated, explaining the amount of fees claimed and which he recovered below, and in the absence of explanation the evidence of the defendant in this regard will be taken as correct.

The contention of the plaintiff's counsel that the amount of the constable's fees claimed, $1.05, having been included in the former judgment in favor of the plaintiff, is conclusive upon him and cannot be attacked collaterally, or that the defendant is estopped by the amount of constable's fees recovered in the former action, seems to me to be unsound.

The operation of an estoppel must be mutual, and it can hardly be claimed that the plaintiff in this action is bound by the recovery between Gillette and the defendant in the former action. A judgment is not binding as between a party and a stranger. Stephen's Digest, Ev., art. 42. And the plaintiff is a stranger to the former action. For the reasons herein set forth, the plaintiff is not entitled to recover to exceed forty-five cents, and is entitled to recover at least twenty-five cents for service of summons, without mileage, unless the defendant made a sufficient and proper tender, which is the only remaining question.

To effect a common-law tender, it must be shown affirmatively that the money was tendered unconditionally, that it has been kept ready at all times to pay upon demand, and must be brought into court and deposited at the time of answering. Brown v. Ferguson, 2 Denio, 196; Livingston v. Harrison, 2 E. D. Smith, 197

County Court, Onondaga County, March, 1896.

[Vol. 16.

(Marine Court); Roosevelt v. Bank, 45 Barb. 579, 584; Becker v. Boon, 61 N. Y. 317.

The reason of this is that the fact of tender admits the claim sued upon, and the right of the plaintiff to recover that amount in any event, and the amount tendered belongs to the plaintiff, whatever may be the result of the action. And to be complete, it must be so placed as to be within the power of the plaintiff to obtain it. Becker v. Boon, 61 N. Y. 322; Wilson v. Doran, 110 id. 101.

The defendant showed a tender to plaintiff, but did not show affirmatively that it had been kept good; did not show that the same money was brought into court, and did not pay it in court at the time of answering, or in fact at any time. For these reasons the tender was ineffectual unless these irregularities were waived by the plaintiff not objecting.

It was held in Sheriden v. Smith, 2 Hill, 538, that by pleading over the plaintiff waived the failure to pay into court. See also Halpin v. Insurance Co., 118 N. Y. 166, 178.

But the cases where a waiver was claimed were actions in courts of record, and where by pleading, or failure to return a pleading served, a waiver was claimed. But in justices' courts there are no pleadings subsequent to the answer, and the plaintiff was under no legal obligation to explain to the defendant that he had not fully performed his attempted tender.

It appears that the money upon the trial was produced and tendered to the plaintiff, who would not accept it. I see no legal significance in this further than an unsuccessful tender in court. As the tender was ineffectual, the plaintiff is entitled to recover judgment for forty-five cents.

Judgment below affirmed as to forty-five cents and justice's costs, and reversed as to the balance of damages allowed in the judgment below. As the defendant attempted before suit to pay to the plaintiff the amount so awarded and only failed in establishing the defense of tender by irregularities in not keeping the same good (for which irregularities he should pay justice's costs); in other words, the plaintiff could have obtained the amount actually due without suit, for which reasons I award the defendant $10 costs and $2 disbursements for justice's return, pursuant to subdivision 5, section 3066 of the Code of Civil Procedure.

Ordered accordingly.

Misc.]

Supreme Court, March, 1896.

WILLIAM E. ISELIN et al., Plaintiffs, v. THE CHEMICAL NATIONAL BANK, Defendant.

(Supreme Court, New York Special Term, March, 1896.)

1. Negotiable paper - Rights of holder of draft.

The right of the holder of a draft to recover of the acceptor thereof is not affected by the fact that such acceptance was an accommodation one, nor by the fact that he discounted the draft before the acceptance.

2. Same- Pleading - Demurrer.

A demurrer does not admit defendant's knowledge of the fraud alleged in the complaint where the complaint does not allege such knowledge.

DEMURRER to complaint.

Roosevelt & Kobbe (George H. Yeaman, of counsel), for de

murrer.

Blumenstiel & Hirsch, opposed.

PRYOR, J. The complaint exhibits this state of facts: That on the 9th of March, 1893, the Camden Woolen Mills Company drew upon the plaintiffs by bill of exchange for $5,000, payable to the order of S. B. Still & Co.; that on the same day the draft "was delivered, after being indorsed" by Still & Co., to the National State Bank of Camden; that the Camden bank forwarded it to the Girard National State Bank of Philadelphia "for collection. and acceptance," and the Girard bank transmitted it to the defendant "for the like purpose; " that on the 10th of March it was duly accepted by the plaintiffs, "payable at the Gallatin National Bank;" that "thereupon, after such acceptance, the defendant forwarded it through the New York Clearing House to the Gallatin bank, which paid the full amount to the defendant on the 11th day of March, 1893, and charged the same against the deposit account of the plaintiffs;" and that no value was parted with by the defendant on account of such acceptance and payment. The complaint further alleges that plaintiff's acceptance was for the accommodation of the drawer, and was induced by the drawer's

Supreme Court, March, 1896.

[Vol. 16.

and payees' fraudulent concealment of their respective insolvency; that of such fraud the plaintiffs were ignorant when they accepted and paid the draft; that upon the discovery of the fraud, and while the proceeds of the draft were still in the possession of the defendant, the plaintiffs notified the defendant of the fraud and demanded restitution of those proceeds.

To recover the money they paid upon the draft the plaintiffs bring this suit; and the question on the demurrer is, whether they state facts sufficient to constitute a cause of action.

Obviously, the Camden bank was the owner of the draft, the defendant merely agent for collection; and, as the indorsement of the payees imported a consideration, the Camden bank was a holder for value. Hook v. Pratt, 78 N. Y. 371, 374. Nay more, since the complaint omits to impute notice of any fraud to the bank, it appears on the pleadings as a holder in good faith as well as for value.

The defendant stands upon the right of the Camden bank, its bailor and principal; and if the plaintiffs could not reclaim the money from the bank, neither may they from the defendant.

The question decisive of the controversy is, could the plaintiffs have defeated an action on their acceptance in behalf of the Camden bank? If such an action could not be maintained, the plaintiffs are entitled to judgment. If such an action could be maintained, then, indisputably, the plaintiffs must be defeated. For a right in the Camden bank to recover the money of plaintiffs on their acceptance negatives and annuls any right in the plaintiffs as acceptors to a restitution of that money.

The plaintiffs challenge the right of the Camden bank to recover on their acceptance because the acceptance, being posterior to the indorsement of the draft to the bank, the draft was not taken on the faith of the acceptance. But it is the settled law of this state that the right of the holder of a draft against the acceptor is not affected by the mere fact that he discounted the draft before acceptance. Commercial Bank v. Norton, 1 Hill, 501, 508; Mechanics' Bank v. Livingston, 33 Barb. 458; Bank of Louisville v. Ellery, 34 id. 630; First Nat. Bank of Portland v. Schuyler, 7 Jones & Sp. 440.

The plaintiffs insist that they are accommodation acceptors; but neither would this fact impair defendant's right of recovery on the acceptance. "The acceptor is liable to the party who, in good

Misc.]

Supreme Court, March, 1896.

faith and for value, discounts the bill before its acceptance; and this although such party knew it was to be accepted for the accommodation of the drawer." First Nat. Bank v. Schuyler, supra; Commercial Bank v. Norton, supra; Mechanics' Bank v. Livingston, supra.

But, contend the plaintiffs, their acceptance being the effect of fraud, in an action on the acceptance the burden would be upon the holder to prove his good faith. Were the holder of the draft suing the acceptors on the facts stated in the complaint, his good faith would not be in question; for his good faith is not challenged by the complaint. A circumstance is adduced which, on the trial, might be evidence of bad faith, but upon the pleadings the fact is not apparent. The demurrer does not admit the holder's knowledge of the fraud, because such knowledge is not imputed by the complaint. The principle is elementary that a demurrer admits only matter well pleaded; not arguments or inferences. The rule that fraud in the inception of negotiable paper casts upon the holder the burden of showing good faith is but a regulation in the production of proof on the trial.

In determining the validity of the complaint, I have assumed, in favor of the plaintiffs, that it shows an acceptance for accommodation induced by fraud, but whether it be sufficient to the purpose is a question of extreme doubt.

In effect, the action is for money had and received, and the controversy is between the holder for value of a draft and the acceptor who has performed his engagement by payment to the holder. Clearly, this holder may retain the money with equity and good conscience, and this suffices to defeat the action. Dumois v. Hill, 11 Misc. Rep. 242.

Demurrer sustained, with leave to amend.