The action is on a note made by Harriet Edwards to the order of Annie Allen, indorsed by the defendant and delivered to Allen, and then indorsed and delivered by Allen to the plaintiff. Since Herrick v. Carman, 12 Johns. 159, it has been the law of New York that upon the relations of the parties as they appear on this paper, without more, the plaintiff cannot recover against the defendant. Moore v. Cross, 19 N. Y. 227; Bacon v. Burnham, 37 N. Y. 614; Phelps v. Vischer, 50 N. Y. 69; Coulter v. Richmond, 59 N. Y. 478; Wyckoff v. Wilson, (Com. Pl. N. Y.)
Upon the evidence it is neither apparent that the defendant was privy to the consideration between the maker and payee, nor that he intended by his indorsement to become surety for the maker with the payee. True, his name was on the note when delivered to the payee, but the legal effect of the fact was that he incurred a liability subsequent and subordinate to that of the payee. Bacon v. Burnham and Coulter v. Richmond, supra. True, again, the defendant acknowledged the indorsement, but an indorsement which, in law, bound him only after the payee. True, still further, that he said the note would be all right at maturity, but this, at the most, was a. promise to discharge his liability as apparent on the paper; that is, as second indorser. In short, at the interview with the plaintiff, not a word fell from the defendant which tended to qualify his legal responsibility upon the note. Unquestionably, the plaintiff took the note on the faith of the defendant’s admission of liability, but of the liability which the law imposed between the parties. The plaintiff said, “The party that has this note [the payee] wants me to take it as money; and, if I take it, will it be all right?” The defendant assented; that is, he agreed to be surety for the payee, but such he was already, by force of his indorsement,—not, however, in behalf of the plaintiff. The evidence is insufficient to justify the direction of the verdict for the plaintiff. Phelps v. Vischer, 50 N. Y. 69, 74. Judgment reversed, and new trial ordered; costs to abide event. All concur..