This, action cannot be maintained. The case of Spencer a. Ballou (18 N. Y, 327, 333), is conclusive against the plaintiff on the question of protest.
The defendant was under no obligation to notify Bates, the second indorser, because the bank was then the owner of the note.
The plaintiff knew that he had not been charged as the third indorsei-, except by the notice handed to him on the 27th of July, and he then voluntarily gave his check for the amount. That was a voluntary payment, and was a waiver of any objection that he had not personally been charged as an indorser by notice of demand from the maker, and non-payment.
His want of knowledge that Bates, his prior indorser, had not been notified so as to charge him as an indorser, was of no consequence. If the plaintiff had known that fact fully, it *237would have constituted no defence in an action by the bank against him as an indorser, within the principle decided by the Court of Appeals, in the case referred to, supra.
The defendant is entitled to judgment, with costs.
Sutherland, J.This case comes irregularly before the general term, and in such a form, that I do not think we can pronounce any valid judgment.
The action was tried before a jury. At the close of the plaintiff’s evidence the defendant moved that the complaint be dismissed. This motion was granted; and the plaintiff excepted ; and this is the only exception in the case. The justice then directed, that the case to be made be first heard at the general term.
It is plain that this was irregular. The exceptions, which, by § 265 of the Code, the judge trying the cause may direct to be heard in the first instance at general term, are exceptions taken during the trial, and not exceptions to the final judgment, or decision in the action.
The general term of this district have recently decided this very point. See Hoagland a. Miller, 16 Abbotts’ Pr., 103.
There must be a new trial, with costs to abide the event of the action.
Leonard, J., dissented from this opinion of Sutherland, J.
Barnard, J., concurred in the opinion of Leonard, J.
Judgment for defendant.