(dissenting). Plaintiff brings' this action upon four promissory notes, for $70 each, made by the defendants, payable to and indorsed by one Karl Hershon. The notes were all dated June 10th, and were payable on dates, respectively, from two to three months thereafter.
The defendants showed by uncontradicted testimony that the notes were part of a series delivered to Hershon by them for the purpose of effecting a settlement with their creditors, and that they were converted by Hershon to his own use. Plaintiff claims to have received them from Hershon in payment of a pre-existing indebtedness of $100, plus $170 also advanced to Hershon in numerous cash amounts, thus netting him a profit of $10. He also testified that he knew nothing of the circumstances under which Hershon had obtained the notes. His evidence was entirely uncontradicted.
A witness on behalf of defendants testified to a conversation with plaintiff in December, 1910, wherein plaintiff admitted that “he knew” (indeed, that Mr. Hershon had told him) that the notes were made by the defendants at a time when they were in bankruptcy. Even conj ceding to the testimony of this witness, which appears to me to be open to some suspicion, its full effect, because it was uncontradicted, it amounts to no more than that plaintiff at some time—it may be long subsequent to his acquisition of the notes—knew that they had been made while the makers were in bankruptcy. But, even supposing that he knew that fact at the time of the purchase by him of the notes, that did not affect the validity of the notes or plaintiff’s good title thereto, since the defendants were adjudicated bankrupts on June 4, 1910, and, as pointed out by the trial justice, promissory notes issued by them thereafter were perfectly valid.
Conceding, therefore, that this case falls within section 94 of the negotiable instruments law (Consol. Laws 1909, c. 38), and that the title of Hershon to the paper was defective, there is no evidence whatever to the effect that (under section 95) plaintiff nod notice of the defect. Indeed, we may go further, and on the authority of Canajoharie National Bank v. Diefendorf, 123 N. Y. 191, 25 N. E. 402, 10 L. R. A. 676 (and cases involving the same transaction, Vosburgh v. Diefendorf, 119 N. Y. 357, 23 N. E. 801, 16 Am. St. Rep. 836, and Joy v. Diefendorf, 130 N. Y. 6, 28 N. E. 602, 27 Am. St. Rep. 484), assume that, as provided by section 98, it thereupon became incumbent upon plaintiff to prove that he was a holder in due course—in other words, that he had acted in good faith. It would seem that he had sustained that burden.
Inasmuch as both sides moved for the direction of a verdict, it was the duty of the trial judge to pass upon the facts; and he resolved all questions in favor of plaintiff. The evidence is sufficient to support that conclusion.
*41I do not think that we can properly decide this case upon remarks made by the court in the course of a colloquy with counsel. It has been repeatedly held that the trial judge is not required to .act like a dummy; and it is the universal experience that, in discussion of the case with counsel or in the course of other statements, the trial judge may make remarks which, if they were formal decisions, might justify a reversal. Where, however, as in this case, they are evidently mere expressions of doubt, or suspicions passing through the judge’s mind while he is endeavoring to weigh the evidence and come to an ultimately just conclusion, they must be given no more nor other weight than that circumstance would warrant. It may also be noted that the judge said that he came to his conclusion with much reluctance. While such remarks may sometimes be regarded as injudicious, they cannot be made the basis for holding that the court has decided against the evidence, which is ample to support its decision.
The judgment should be affirmed.