#### Emma A. Reed, Resp’t, *v.*The Photo-Gravure Co., App’lt.

*(City Court of New York, General Term,*

*Filed March 27, 1891.)*

Bills and notes — Irregular endorsement before delivery to PAYEE.

In the absence of proof that the endorsement was made to enable the maker of a note to procure credit with the payee, one who endorses a note before it is delivered to the payee is only liable as second endorser.

Appeal from judgment in favor of plaintiff payee, against defendant endorser.

*Henry Wehle,*for app’lt; *Bollin M.*Morgan, for resp’t.

Van Wyck, J.

On March 6, 1889, in an action by Emma A. Reed against A. J. Bishop, one P. I. Clarkin was the attorney of record for plaintiff Reed. Upon the trial of the case now under-consideration the plaintiff was, against objection and exception from the defendant the Photo-Gravure Company, allowed to prove by Clarkin, her attorney m the suit against Bishop, .that the time within which Bishop could answer was extended until May 9, 1889, upon receiving from him his promissory note endorsed by Photo-Gravure Company and with the further understanding with Bishop alone that if the note was paid at maturity (May 8, 1889), that that action was to be marked discontinued and settled.

The following is a copy of the note:

> “ $80. N. Y. City, *Mar. 6th,*1889.

> “ Sixty days after date I promise to pay to the order of P. L Clarkin, Attorney, Eighty Dollars at No. 26 University Place. “Valuereceived. A J. Bishop.”

> And was endorsed as follows:

> “ The Photo Gravure Company,

> “ Ernest Edwards, Treas.”

> “P. I. Clarkin, Attorney.”

> “ Pay to the order of Emma A. Reed.

> “P. I. Clarkin, Attorney.”

*468In view of the fact that P. I. Clarkin was the attorney of record for Emma A. Reed in her action against Bishop, this note must be read just as if it had been drawn to the order of Emma A. Reed. The case at bar against Photo-Gravure Company seems to have been tried below, as shown by the record, and argued upon this appeal, as evidenced by the points of both counsel, upon the theory as to whether or not Ernest Edwards,- treasurer, had authority, either express or implied, to make the endorsement for the defendant company, whether or not such act of endorsement was *ultra*vires, and whether the doctrine of estoppel was to prevail against defendant. However, it seems proper that this appeal should be disposed of without giving serious consideration to these respective contentions of plaintiff and defendant, for in this case there is not the slightest evidence to show that the Photo-Gravure Company, its officers, employes or attorneys, had any knowledge whatever of the transactions between Bishop, the maker, and Emma A. Reed, the payee of the note, which,' for reasons given above, must be read as if drawn to her instead of to Clarkin, her attorney.

The Photo-Gravure Company’S knowledge that Bishop, the maker, intended to obtain credit with Reed, the payee, is not to be inferred from the fact that the company endorsed the note in blank before it was delivered to or endorsed by the payee, for the presumption of law, from the instrument itself, is that one who has endorsed a promissory note before its delivery to the payee intended to become liable simply as a second endorser. Of course this presumption can be rebutted by parol proof that such endorsement was made to give the maker credit with the payee, but no such proof has been made in this case.

This rule of law is laid down in *Bacon*v. Burnham, 87 N. Y., 614, and *Hull*v. Marvin, 2 Sup. Ct., 420, affirmed in 59 N. Y., 652, and most aptly stated by the late Chief Justice Church in *Coulter*v. Richmond, 59 N. Y., 481, as follows:

> “ In this state it has been repeatedly held, and is too strongly settled by authority to be disturbed, that a person making such an endorsement is presumed to have intended to become liable as second endorser, and that on the face of the paper, without explanation, he is to be regarded as second endorser, and, of course, not liable upon the note to the payee, who is supposed to be the first endorser."

Nothing more need be said to justify the reversal of this judgment and the granting of a new trial, with costs to appellant to abide the event.

Ehrlich, Ch. J., and McGown, J., concur.