The defendant, in opposing the motion for judgment on account of the frivolousness of the answer, had a right to ■ attack the complaint. (Van Alstyne v. Freday, 41 N. Y. 174; Wilkin v. Raplee, 52 id. 248, 251.) The complaint, according to numerous decisions (Edison General Electric Co. v. Zebley, 72 Hun, 166 ; McPhillips v. Jones, 73 id. 516 ; Woodruff v. Leonard, 1 id. 632; Draper v. The Chase Manfg. Co., 2 Abb. N. C. 79), was fatally defective, unless, as claimed by the plaintiff, the defect was obviated by the provisions of section 114 of the Negotiable Instruments Law (Chap. 612, Laws of 1897), taking effect October 1, 1897. The order for judgment was made at Special Term in June, 1897.
The action was upon a promissory note dated July 30, 1896, made by the defendant Charles E. Lange and payable to the order of the •plaintiff-three months after date. The allegation of the complaint is that the defendant Charles E. Lange made the. note, a copy of which was set out, “ and delivered the same to the plaintiff, and the ■said Margaret J. Lange, before the delivery thereof to plaintiff, indorsed the said note, and the same was thereupon,, and before- it *13came due, for value received, duly transferred to the plaintiff, who then became and still is the owner and holder thereof.” There was no allegation that Margaret indorsed it in order to give the maker credit with the payee or as surety for the maker. An allegation to that effect is held to be necessary in the cases above cited.
By section 114, above referred to, it is provided that when a person, not otherwise a party, indorses in blank, before delivery, an instrument payable to the order of a third party he is liable as indorser to the payee.
According to the law as it stood when the action was commenced, certain facts must exist beyond the simple fact of indorsement in order to make the defendant liable. The subsequent statute makes a different, obligation, and, therefore, does not affect prior contracts.
We are of the opinion that this act, not taking effect till October 1, 1897, does not help the plaintiff on this appeal. '
It follows that the order for judgment was improperly granted. It seems that under section 3238 of the Code we have no discretion as to the costs of the appeal.
All concurred.
Judgment and order reversed, with costs, and motion denied.