Opinion
March, 1899.
Edward D. Newman, for appellant.
Samuel Schlesinger, for respondent.
This action was brought to recover the sum of $350 upon a promissory note made by one Mehr, payable to the firm of Bliech Klein, indorsed first by one Newman, the second indorser being this defendant. After the note in question had matured and had been protested for nonpayment, this plaintiff went to the holders of the note (Bliech Klein) and paid it, and the same was then delivered to plaintiff, who thereupon brought this action against this defendant without joining the first indorser, Newman.
The defense relied upon by Friedman is, that the note was, in fact, paid by Newman, the first indorser, thereby discharging the second indorser (this defendant) from liability. At the close of the testimony each of the attorneys for the respective parties made a motion for judgment, and thereupon the court rendered judgment in favor of the defendant.
"Motions of that character, made by the respective parties in an action, are equivalent to a consent that all the questions, both of law and fact, be decided by the court." Switzer v. Norton, 3 A.D. 173.
The testimony in the case fully sustains the decision of the court. Newman, the first indorser, was primarily liable on the note. The plaintiff testified that he (plaintiff) paid the amount due on the note at the request of Newman. In other words, the plaintiff laid out his money at the express request and for the benefit of Newman. In the view most favorable to the plaintiff it can only be said, that the facts and circumstances shown upon the trial were sufficient to raise the question of fact for the determination of the court below, who found for the defendant and against the plaintiff, and his determination under all the facts and circumstances in the case should not be disturbed.
MacLEAN and LEVENTRITT, JJ., concur.
Judgment affirmed, with costs.