majority">Lehman, J.

The plaintiffs sued upon a note made by the defendant. The plaintiffs claim that they are holders for value of the note by assignment from the original payee. The defendant, on the other hand, denies that the plaintiffs are holders for value, and claims that the original payee fraudulently altered the note by inserting the words “with interest” after execution. It is not disputed that the payee did insert these words after execution. If he inserted these words with fraudulent intent, it was a material alteration which vitiates the note (Columbia Distilling Co. v. Rech, 151 App. Div. 128; McGrath v. Clark, 56 N. Y. 34), but “ Sometimes an alteration in a n.ote, seemingly *166material, and such as may prima facie render it void, is innocent and does not vitiate the instrument. So it is, when it is done to correct a mistake in penning the note, or to make it express the real bargain of the parties, or to give the proper legal form to their contract. In such case the payee has the right to enforce it. ” Booth v. Powers, 56 N. Y. 22, 31. In this case the payee testified that the maker had authorized the insertion of these words, and the defendant, though present at the trial, failed to make any direct denial of this testimony. Moreover, it appears that the original debt was immediately payable, and it is fairly inferable that the note which was given for the purpose of postponing the payment of the original debt was intended to bear interest. It would, therefore, seem that, though the alteration would prima facie vitiate the note, it was made with the intent of éxpressing the real bargain of the parties, and that, consequently, the plaintiffs, even if they are not purchasers for value, are entitled to enforce the note, at least according to its original tenor.

Judgment should be reversed and a new trial ordered, with costs to appellants to abide the event.

Butte and Whitakeb, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellants to abide event.

Citation profile

Relationships

How this case has been treated — in progress