Jones v. Home Furnishing Co. , 41 N.Y.S. 71 ( 1896 )

Hatch,, J.:

. Separate actions were brought upon three- promissory notes. The notes, which were made payable to the order of “ National Publishing Company,” and were signed by the defendant through its president, were each in the same form, excepting the dates and amounts. The defendant is a. domestic corporation, having its place of business in ' Brooklyn. The. National Publishing Company is a name assumed by plaintiff in carrying on his business, and represents nothing beyond that assumption. It is.conceded that the notes were each given for a valuable Consideration received by the defendant from the- plaintiff, but the claim is made that the notes were made payable to a .company that had no existence, and that, therefore, the paper Was fictitious; and that as the indorsement was fictitious and spurious no title passed to the notes. This defense savors of delay and the use- of legal remedies to prevent collection of a bona fide débt. The notes were as much payable to Jones when they were made payable to the name under which he carried on his business as though he had been named therein. It was not in legal contemplation a fiction, but it Was the plaintiff under this business name and represented him. When the notes were made and delivered to plaintiff under these conditions they created a liability against the defendant in plaintiff’s favor; and had the. complaint set out the fact that the payee was the plaintiff’s business name, and that the notes were so made payable on account thereof, there would be little doubt that defendant Would not have had the temerity to interpose a defense.At the most the question now here is one of pleading, as plaintiff has made the usifal allegation of delivery to-the payee and- indorsementby it to the plaintiff. But the facts were all known before issue was joined and when the trial was had. The complaint, therefore, will be deemed amended in accordance with the facts. The notes in plaintiff’s hands are subsisting liabilities against the defendant in his favor. (Mechanics' Bank v. Straiton, 3 Keyes, 365; Maniort v. Roberts, 4 E. D. Smith, 83.) These notes having been given for bona fide debts, and delivered to the plaintiff, defendant is estopped from setting np as against plaintiff that they were made payable to a fictitious payee, if by such averment the notes would be defeated in plaintiff’s hands. (Irving Nat. Bank v. Alley, 79 N. Y. 536.)

The judgments appealed from should be affirmed, with costs.

All concurred.

judgments affirmed, with costs.