By the Court,
Foster, J.Had the note been executed by all the stockholders, it is possible that the law would presume the intent to act not only for, but as the corporation; and to make themselves liable to each other in the same proportions as if the note were executed by the corporation: but such was not the fact, and I will not examine the question.
Upon the facts proved and found, I have no" doubt that the decision of the court below was correct. The condition of the corporation required the individual note of the persons who executed it; and they executed it without any thing appearing to show that their liability, as between each other, was otherwise than as expressed by the note. And the well settled principle of law prevails that as between them and the payee, they were jointly and severally liable to pay the whole amount. As between them and the corporation, they were all accommodation makers; and the corporation was liable to each of them for all sums which they should have to pay. And as between themselves, each was liable to pay one fifth part of the whole amount.
These rules are not to be changed or misapplied, either because the makers of the note had unequal interests in the corporation, or because the company, or Grillett, became insolvent. .
There was, strictly speaking, no subrogation of the plaintiff to all the rights of the payee; for the payment of the note satisfied and discharged it, and the plaintiff could not afterwards sue the other makers, or any of them, upon the instrument: but his payment of the note did authorize him to sue any of the other makers for contribution. Such was the suit brought against the defendant, and he was liable to pay his one fifth part of it, less the amount of his counter*270claim. There was no reason why a suit in equity should have been commenced ; for the plaintiff had a cause of action at law.
[Onondaga General Term, October 4, 1864.The judgment is right, and should be affirmed.
Judgment affirmed.
Morgan, Sacón and Foster, Justices.]