#### Sebastian Shorer, Resp’t, *v.*The Times Printing and Publishing Company, Impleaded, *et al.,*App’lts.

*(Supreme Court, General Term, Fifth Department,*

*Filed June 22, 1889.)*

Promissory notes—When judgment by default cannot be taken—Code Civ. Pro., § 1778.

Section 1778 of the Code of Civil Procedure, authorizes the entry of judgment by default in an action against á foreign or domestic corporation to recover damages for the non-payment of a promissory note, etc., unless a judge’s order accompanying the defendant’s answer excludes the case of an action against such a corporation as an endorser.

Appeal from an order of the Monroe county court, denying defendant’s motion to vacate a judgment.

D. *C. Feeley,*for app’lts; *Chas. M. Williams,*for resp’t.

Dwight, J.

The judgment was entered under section 1778 of the Code of Civil Procedure, for want of a judge’s order to accompany the answer of the defendant, which is a domestic corporation.

The action was on a promissory note made by one Merrill and endorsed by the defendant corporation.

The only question in the case is whether the statutory provision referred to applied to a corporation liable, if at all, only as endorser of a promissory note.

The text of the provision is as follows: “In an action against a domestic or foreign corporation to recover damages for the non-payment of a promissory note, or other evidence of debt, for the absolute payment of money upon demand, or at a particular time * * "x" unless the dedefendant serves, with a copy of his answer or demurrer, a copy of an order of a judge, directing that the issues presented by the pleadings be tried, the plaintiff may take judgment, as in case of default of pleading, at the expiration of twenty days,” etc. This provision of the statute is plainly in derogation of the common law, and must, therefore, be strictly construed. *Bradley*v. *Albemarle Fertilizing Co.,*2 Civ. Pro. Rep., 50; *Barr Co.*v. *Kuntz Co.,*18 Abb. N. C., 476.

It is a provision which authorizes a plaintiff to disregard the answer of the defendant, though it consist of a general denial and be supported by a solemn verification, and to *869enter judgment, notwithstanding such answer, without so much as an application to the court. Such a statute will not be extended beyond the strict limitation of the terms employed. By the original act of 1825 (chap. 325, § 4), the analogous provision was applied to every suit prosecuted against any incorporated company “upon any contract, note or other evidence of debt.” When the provision was incorporated into the Revised Statutes, the word “ contract ” was stricken out and the words “ for the absolute payment of money on demand, or at any particular time, ” were added after “evidence of debt,” and the provision of the Code of Civil Procedure retains the modification introduced by the Revised Statutes.

This modification is of great significance as indicating an intention to circumscribe the application of the rule of practice. And yet even under the original provision it was held by the supreme court in two cases, that it had application only to an action upon some instrument which was, in itself, *per se,*evidence of debt. *Anonymous,*6 Cow., 41; *Tyler*v. *The Ætna Fire Insurance Co., 2*Wend., 280. These cases were commented upon and approved in the case of *The New York Life Insurance Co.*v. *The Universal Life Insurance Co.,*(88 N. Y., 424), and in that case the rule of the application of the statute is stated as follows: “The provision applies only to instruments which admit on their face, an existing debt payable absolutely.”

The rule, thus stated, we think, clearly excludes the case of an action against the endorser of a promissory note. The contract of endorsement is not “an instrument which is of itself, *per se,*evidence of debt; ” it is not “ an instrument which admits, on its face, an existing debt payable absolutely.” The liability of an endorser is not absolute, but contingent; it is not established by production and proof of the instrument upon which the endorsment is borne, and of the endorsement itself. It requires proof, *aliunde*the instrument of presentation to the maker, demand of payment, non-payment, and notice thereof to the endorser, to show that the contingent liability has become absolute, and none of this proof appears on the face of the instrument, nor of the endorsement.

We have been referred to no case, and know of none, in which the provision in question has been applied to the case of an endorser. The case cited by counsel for the respondent, in which it was applied to an action on a policy of life insurance, *Studwell*v. *Charter Oak Insurance Co.*(19 Hun, 127), was expressly overruled in the case of the *New York Insurance Co.*v. *Universal Life Insurance Co. (supra).*

We think the practice of the plaintiff in entering the judgment, was unwarranted by the statute, and that the motion to vacate the judgment was improperly denied.

The order of the county court should be reversed, and the *870motion granted, with costs of the motion and of the appeal.

All concur.