The action is upon a promissory note executed by the defendant Samuel Lacs, and indorsed before delivery to the payee, Samuel Exl, by Jennie Lacs. The written part is in the handwriting of one Goldberg who was' present at its execution. The note was afterwards transferred by Exl to one Amos. Gordon and by the latter to the plaintiff, who brought this suit thereon. The defense is that the note was a non-negotiable one and, therefore, improperly transferred to the plaintiff. The note was indorsed by Jennie Lacs and delivered to Exl as collateral security for the payment of a note of like amount, bearing the same date, and executed by Samuel Exl for'the accommodation of Samuel Lacs. At the time of the delivery of the note in suit to Exl he agreed with the defendants Samuel and Jennie Lacs that he would not negotiate the instrument but would hold it as collateral security for the payment of the note made for the accommodation of Lacs. Such note made by Exl for the accommodation of Lacs was fully paid at maturity. In violation of the agreement to so hold the note it was improperly transferred to Gordon and afterwards to the plaintiff. The note was written on the usual blank form of a "promissory note, and it was made to the order of Samuel Exl, the words “ order off” being in the printed form. In the lower left-hand corner of the note under the words “Value received” in the printed form was the abbreviation “ No.” followed by a blank space an. inch long, and then on the same line following the blank space, the word “ Due,” with a blank space following that. The letter' “t” was added to the abbreviation “ No. ” and the word “ transferable ” was written in the remainder of the short blank space. This word was in the same handwriting as the body of the note, but was in a somewhat smaller and contracted hand to accommodate the long word “transferrable ” to the limited space in which it was written. The testi*94monyshows that Gordon, the indorsee, was unable to read written English and that before taking this note he consulted a friend,, one Michael Lackey, who had been a'banker accustomed to handling commercial paper, who advised him it was good commercial'.paper. Lackey testified that while he observed there was some writing in the lower left-hand corner, he did not .notice that the words “ not transferrable ” .were thereon. The cashier of the plaintiff testified that he examined the noté when- it was brought to him, and that he did not notice, these words.-
In Benedict v. Cowden (49 N. Y. 396) it was held that a memorandum upon a note made and' delivered cotemporaneously with it, and intended by the parties as a part of the contract and to give effect to their actual agreement, is a part of .the note, and qualifies it the same as if' inserted in the body of the instrument. The appellant seems to concede that -whatever is written on the note with the knowledge of a party to it is unquestionably binding upon him. It is also a rule of. law that the written-portion of an instrument must prevail over' the printed when the- instrument is prepared on a. printed form. But the claim here is that the words “not trahsferrable” were so obscurely written'as to be calculated to deceive an innocent purchaser, and that the maker was not free from negligence in signing a note such as was this.
There is no substantial dispute on this appeal as to the law of the case, but a question of fact was presented as to whether the maker was guilty of negligence in not having these words “ not trans-' ferrable” more plainly written upon the. note. That, question of fact has been determined adversely to the appellant by the findings of the coiirt, where it is found. that the defendants Samuel and Jennie Lacs were guilty of no fraud or negligence in making, indorsing or delivering the said note to Exl. I am inclined, to believe that there .is sufficient evidence to support this finding of absence of negligence.. While .the note as written might .deceive some men, it would not others. The cashier of the plaintiff testified that he examined the note in the ordinary course of business, but it appeared that he examined it hastily, and did not give upwards of half a minute to such examination; just long' enough, to read it through. The witness- Lackey,' while he noticed some writing at the bottom of the note,, did not give it sufficient care to determine what *95it was. When the attention of the cashier was called to the matter in court he testified that he could see that the words “not transferrable,” were plain to him then. The taking of this note by the bank with these words written upon it comes much nearer being carelessness on the part of its cashier than it was for the maker to not see that these words were more plainly written, or written in larger letters. I think, therefore, we would hardly be justified in reversing the court’s finding on this question of fact., If I am right in this respect, the finding is controlling, and should result in the affirmance.of the judgment.
The judgment should be affirmed, with costs.
All concurred, except Kellogg, J., dissenting, in opinion, in which Sewell, J., concurred.