Schwartzman v. Post

Affirmed, with costs, on opinion of the court below, and judgment absolute ordered for defendant, with costs.

According to the testimony of the plaintiff, the note was not paid, nor was it surrendered up to the defendants upon the understanding that it was to be deemed paid, but on the distinct agreement that the defendants were to remain liable for the balance for which plaintiff has recovered in this action. The defendants did not, therefore, in my opinion, by this surrender become holders of the note in their “own right,” within the intent and meáning of subdivision 5 of 'section 200 of the negotiable instruments law, Laws 1897, p. 744, c. 612, and the transaction did ndt constitute a discharge of the note. The defendant merely became the bailee thereof for the payee.