The only serious question here is whether the $3,600 obtained from the plaintiff was loaned to Anson E. York or to the corporation of which he was president. The complaint alleges that it was loaned to him, and the jury so found. I think the evidence warrants that finding, and that parol evidence was competent to establish that fact, and show that York was primarily liable, notwithstanding the form of the note. (Witherow v. Slayback, 158 N. Y. 649 ; Haddock, Blanchard & Co. v. Haddock, 192 id. 499, 509.)
The plaintiff had a check calling for $3,600. Anson E. York desired to obtain the money. He went to her home, told her that he • would take the money and give her good security; offered her bonds of his company. She refused to take the bonds. He stated that he was perfectly good, saying that he was worth at least $40,000 ; and to make it still stronger he would have the firm of Simonds & Aldrich sign it: The next day the plaintiff’s husband saw York. York handed him the note (which will be described presently) and received in return the check for $3,600.
The note is dated March 9, 1906, payable six months after date, for $3,600, to the order' of Simonds & Aldrich at The National Bank and Loan Company, Watertown, N. Y., with interest, signed: “WTN. SAND BRICK CO., per A. E. York, Prest.” The form of the promise contained in the note, is, “We promise.” Indorsements appear on the back thereof in the following order: Simonds & Aldrich; A. E. York.
*645The interest on- that note was paid and a renewal given, dated September 10, 1906. The renewal note was. precisely like the original note, with the like indorsements thereon, except that it was also indorsed by F. H. Root, and dated as has been stated.
The interest was paid and the note was again renewed. The check for the interest is dated several days after the renewal became due. The second renewal is not produced, but is said to be like the first renewal.
The note was renewed for the third time, and that renewal bears date September 9, 1907, payable six months after it is dated, and in all other respects is the same as the original note, except that it is payable to the order of the plaintiff, and the indorsements thereon are in the following order: F. H. Root, A. E. York, Simonds & Aldrich.
I need not repeat the several interviews between Graham, the plaintiff’s husband, and York. That has been done in the prevailing opinion. It should, however, be stated in that connection that none of these notes was presented for payment to the bank where payable. Graham testifies that York always told him to come to him with the notes, and that he did so; that he did not tell him that the sand brick company was going to have the money that he was borrowing from the plaintiff for use in his business; and that after the death of lrork, and before the last renewal note became due, he (Graham) told the administrator that York was the principal debtor; and that was after he had learned that the sand brick company went into bankruptcy.
The truthfulness of his evidence seems to be doubted, especially the interview which he had with the administrator; and yet the administrator does not deny that the statement was made to him. Graham could have had no object in making the statement at that time as a basis for a false claim, since the note was not then due, and could have been presented and protested.
The fact that the money obtained from the plaintiff was used by the company of which York was president does not necessarily make that company the primary debtor as to the plaintiff. York could borrow the money himself, as I think the evidence shows he did, notwithstanding the fact that he intended to and did pay it over to his company for its use.
Neither do I think that the statement presented to the trustee in *646bankruptcy and the administrator should have the controlling effect claimed therefor. The statements were evidently prepared by the lawyer, as the liability appeared from the form of the written obligation. Undoubtedly the plaintiff could enforce the claim in that form, but that should not preclude, her from asserting her claim upon the loan by her to York. Accepting the note did not necessarily pay or extinguish York’s obligation on the loan.
As regards the suggestion that York would be prejudiced in an action for contribution against his coindorsers because of the failure to present the note for payment, and give the proper notice to the indorsers, that, it seems to me, is a mere matter of conjecture. His right to contribution depends upon his contract with the others in becoming sureties for the brick company, and that question is not here. Of course if York’s only liability to the plaintiff is as 'indorser, and he is not liable on his contract of indorsement, that ends the case, and the question of contribution will not arise at all.
Robson, J., concurred.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event.