I think this judgment should be affirmed. There is absolutely no evidence so far as I can see that would justify a jury in finding that there was any agreement that the indorsers on this promissory note should be jointly liable as sureties for the corporation. In the prevailing opinion it is assumed that the plaintiff and her son and the appellant were doubtlessly impelled to become accommodation indorsers with a view to protecting their financial interests. This is pure assumption, merely based upon the fact that the plaintiff owned some capital stock in the corporation for whose accommodation the note was given. The plaintiff had nothing to do with the actual management of the business of the corporation. She indorsed the notes after the other individual indorsers and I think was entitled to the benefit of section 118 of the Negotiable Instruments Law (Consol. Laws, chap. 38; Laws of 1909, chap. 43), which provides: “ As respects one another, indorsers are liable prima facie in the order in which they indorse; but evidence is admissible to show that as between or among themselves they have agreed otherwise. * * To
justify the court in disregarding this express provision of law, there must be evidence to show that as between themselves they have agreed otherwise. It is conceded that there was no such evidence excepta presumption which arises because of the fact that the plaintiff had owned stock in the corporation. This seems to me to be utterly insufficient to justify the presumption of an agreement to be jointly liable as sureties for the corporation. It is not, as I view it, the intention of the parties that controls, but to justify a reversal of this judgment there must be evidence of an agreement between the indorsers. George v. Bacon (138 App. Div. 208), relied upon *202by the appellant, presented an entirely different state of facts. There there was evidence that the court held justified the inference of an express agreement. In this case there is no such evidence except the mere fact that the plaintiff was the owner of stock of the corporation, and the mere fact that the plaintiff was the owner of stock of the corporation for whose accommodation the note was given is not evidence to sustain a finding of such an agreement.
Judgment and order reversed and new trial ordered, with costs to appellant to abide event, unless plaintiff stipulates to reduce recovery to $789.81, in which event the judgment as so modified is affirmed, without costs. Order to be settled on notice.