Prior to the Negotiable Instruments Law an irregular indorser upon a note was presumptively not liable to the payee. Evidence was permitted, hovvever, to show that he indorsed to give the maker credit with the payee and thus was liable to such payee. In Daniel on Negotiable Instruments (5th ed. § 711), it is stated that parol' proof of the intentions of the parties was ' admitted in such a case for the reason that the position of the name upon the paper is one of ambiguity in itself. .In no case, as I understand, is parol evidence admissible, to vary.the,relations of the parties as defined by- the paper. (Martin v. Cole, 104 U. S. 30.) In Steele v. M' Kinlay (L. R. 5. App. Cas. 754) it was held by the House of *415Lords, before the passage of the Bills of Exchange Act in England, that in a case similar to the case at bar the indorser could not be held liable to the drawer even upon parol proof that the indorsement was made for the purpose of giving the acceptor credit with him. (See, also, Jenkins v. Coomber, L. R. 1898, 2 Q. B. 168; 67 L. J. Q. B. 780; also First National Bank of St. Charles v. Payne, 111 Mo. 291; Dubois v. Mason, 127 Mass. 37.) At no time, therefore, under the common law 'was there authority for ■holding this defendant liable, even upon proof that the indorsement was for the purpose of giving credit to the acceptor.
But whatever may have been the law prior to the enactment of our Negotiable Instruments Law I can see. no escape from the defendant’s contention that that law absolutely fixes his liability upon the paper. The liability of an irregular indorser upon a promissory note payable to a third party is there stated in section 114 to be primarily a liability to the payee; I say primarily, because in the 3d subdivision of the same section it is permitted to show that, he indorsed for the purpose of giving credit to the payee, to whom he would not then be liable. The liability - of an irregular indorser upon a draft payable to the order of the drawer is explicitly defined in the same section, but no different liability is therein provided in case of an indorsement for the purpose of giving credit to the . acceptor with a drawer. The omission could not have been unintentional. To my mind such omission convincingly negatives the legal liability of the defendant upon those drafts. This interpretation of the statute is not affected by the provisions of section 118, which provides that evidence is admissible to show the relations of indorsers among themselves, nor by section 55 of the same act (as amd. by Laws of 1898, chap. 336), which provides that an accommodation party is liable on the instrument to a holder for value. Both these sections are but declarations of the.common law. Steele v. M'Kinlay (supra) was decided under the common law. If either of these sections could otherwise be held applicable they, as general provisions, must yield to the specific rule of liability imposed upon the defendant by section 114 of the act. It cannot be held that the negotiable Instruments Law states only a rule of prima facie liability. One placing his name upon commercial paper has the right to rely upon the measure of his liability imposed by that act, and he *416cari he' subjected to no greater liability by parol proof that the paper was executed with the intention’ of assuming such greater liability.
No case is cited in this State holding a contrary rule. Both the case of Kohn v. Consotidated Butter & Egg Co. (30 Misc. Rep. 725) and the case of Corn v. Levy (97 App. Div. 48) refer to the liability of an irregular indorser of a promissory note payable to-a third party. That tile liability of "such ail indorser is open to explanation by parol is explicitly-provided for. by subdivision 3 of the section.
, H this defendant, for a valuable consideration, legally assumed payment of this debt by contract other than is evidenced by this draft, plaintiff might recover. Under the Statute of Frauds the signing of the draft would not be sufficient to fasten liability upon him unless his liability could be made to come within the law merchant, which is Codified in. oür negotiable Instruments Law. As to the drafts, then, I"think the judgment erroneously charged the defendant, there with, A's to the note, defendant was clearly hablé; under the negotiable Instruments Law.
The judgment should thus be modified and as modified affirmed, without costs to either party. • .
Judgment affirmed, with costs.