#### Everett Clapp, Appellant, *v.*William A. Cooper, Impleaded, etc., Respondent.

(Supreme Court, Appellate Term,

May, 1900.)

1. Bills and notes — Untenable defenses of accommodation indorser.

It is not a defense to the accommodation indorser of a promissory note, as against a *dona fide*holder, that the latter knew the indorsement to have been made for accommodation; nor is it a defense that the holder knew the maker had given collateral security for the note when it was first negotiated, as the indorser could not be subrogated to such security until after he had paid the note.

2. Same — Proof that the holder had put collateral of the maker beyond the reach of the indorser, not admissible unless pleaded.

Proof, that, before the maturity of the note, the holder had returned the collateral to the maker, of permitted him to reacquire it and send • it without the State of New York, thus precluding the indorser from • receiving it, of resorting to it on payment of the note, is inadmissible where no such defense has been pleaded.

*467Appeal from a determination of the General Term of the City Oonrt of the city of Hew York, affirming a judgment of the Trial Term directed by the court in favor of the defendant.

Henry B. Kinghom, for appellant.

James P. Lowrey, for respondent.

*Per Ouriam.*

This is an appeal from a judgment in favor of the defendant, William A. Cooper, in an action upon a promissory note. The complaint is in the usual form, alleging that on a certain date one William Hiller made a promissory note to the order of the defendant, William A. Cooper, for the sum of $1,000, payable four months after date, with interest; that the defendant indorsed it, and the plaintiff became the owner and holder; that at maturity the note was presented and notice of nonpayment given to the said defendant. The answer admits the making and indorsement of the note,, its nonpayment by the said defendant, and the receipt by him of a notice of protest. It then alleges as a separate defense that the said defendant indorsed the note without consideration, and as an accommodation for Hiller, the maker, and that Hiller transferred and' delivered to the persons, with whom the note was negotiated, certain collateral security by way of warehouse receipts, for four paintings, of an actual value greater than the amount secured by the note, and that the note and the collateral security came into the possession of the plaintiff with full knowledge of the facts and circumstances relating to the making and indorsement of the note, and of the giving of the collateral security. It further alleged that, before bringing the action, the plaintiff had actually received payment of the note from or in behalf of Hiller, and that the said defendant had been discharged from all and any liability thereon. Ho question was made as to the acquisition of the note by the plaintiff before maturity, and the answer contains no allegation that he did not pay full value therefor. Hence the mere fact that he knew that the defendant was an accommodation indorser did not, of itself, constitute a defense. Nat. Bank N. America v. White, 19 App. Div. 390. Hor is the fact that the maker of the note gave collateral security for its payment a defense, even coupled with the allegation that the plaintiff knew all the facts and circumstances. Assuming as we *468must, for there is no evidence to the contrary, that the plaintiff was a *bona 'fide*holder for value, the accommodation indorser became, as between himself and the plaintiff, the principal debtor, and could avail himself of the benefit of any security held by the creditor, only by paying the debt and then enforcing his right to subrogation as to the collateral security. The defendant was permitted to introduce evidence tending to show that the plaintiff, after he had become possessed of the note, had returned collateral security to Miller, the maker, or had permitted him to reacquire its possession and send it beyond the State, so that plaintiff, when he demanded payment, could not tender to defendant the collateral, or place him in a position whereby he could resort to it for his protection and recoupment. Such a defense, if properly pleaded and duly proven, might be available. Ocean Nat. Bank v. Fant, 50 N. Y. 474. The difficulty is, however, that no such defense was pleaded, and consequently no evidence thereof could properly be received. The defendant specifically admitted receipt of protest and set forth no defect or invalidity therein. His general allegation, at the end of his answer, that he had been discharged from any and all liability on the note was a mere conclusion of law. • Upon the pleadings as they stand, the evidence alluded to was inadmissible, and, having been properly objected to and excepted to, the judgment must be reversed and a new trial granted, with costs to the appellant to abide the event.

Present: Truax, P. J., Scott and Dugro, JJ.

Judgment reversed and new trial granted, with costs to appellant to abide event.