Statement of the Case. Before SEDGWICK, VAN VORST, and SPEIR, JJ. Decided April 4, 1874. Appeal from judgment. The complaint alleged that Totten made his promissory note payable to order of plaintiff, for value received, "and delivered the said note to the defendant herein, who indorsed, and for value received delivered the said note to the plaintiff, who, on the faith of such indorsement, accepted said note." The answer denied that Totten delivered said note to defendant, or that defendant indorsed said note for or on account of Totten, or as a security to plaintiff for the payment of said note, and alleged that defendant indorsed it solely at request of plaintiff, and for his accommodation, and denied that defendant had received value or any consideration for indorsing the note. On the trial, the plaintiff was a witness in his own behalf. His counsel asked him the question: "State the circumstances under which you received that note?" This was objected to, the objection sustained, and an exception was taken. The plaintiff testified that the note was given to him for plastering done on Totten's houses. The court refused to allow him to answer the question: "What interest, if any, did Thomas W. Smith tell you that he had in those buildings?" To this the plaintiff excepted. At the close of the case, the court directed a verdict for the defendant. David McAdam, for appellant. Thomas W. Smith, attorney, in person, for respondent. George W. Stevens, of counsel. Opinion of the Court, by SEDGWICK, J. BY THE COURT.-SEDGWICK, J.-It appeared on the pleadings and by the note in evidence, that the defendant's indorsement was made before the delivery of the note to the payee. The presumption was that the defendant was not liable to the payee. His liability would be that of an indorser subsequent to the payee's indorsement. To establish a cause of action in favor of the plaintiff, he was bound to show that the defendant indorsed, for the accommodation of the maker, to give credit to the maker with the payee, or to become surety to the payee for the payment of the note (Hall v. Newcomb, 7 Hill, 418; Moore v. Cross, 19 N. Y. 227; Bacon v. Burnham, 37 Id. 614; Meyer v. Hibsher, 47 Id. 265; Phelps v. Vischer, 50 Id. 69; Clothier v. Adriance, 51 Id. 323). Necessarily, to prove this, he had to resort to the facts extrinsic of the note. The question, "State the circumstances under which you received the note?" asked of the plaintiff, but not allowed to be answered, had a tendency to draw out the facts, from which it might appear to the jury what was the defendant's real relation to the note and the plaintiff. Again: it appeared in evidence that the note was given to the plaintiff by Totten, for plastering done on certain houses. The plaintiff was asked in his own behalf, "What interest, if any, did Thomas W. Smith tell you that he had in these buildings?" No objection was taken to the form of the question, but the court, on objection, ruled it to be inadmissible. Although Totten was owner of the houses, the defendant might have had an interest in them. If he in fact had, he was interested in the very consideration of the note. To show this by his admission, would prove that he had a motive to become surety for Totten, the maker. The defendant's counsel objected on the trial to the first question, on the ground that it could not be admitted under the pleadings. The complaint was Opinion of the Court, by SEDGWICK, J. charged with being defective, in that it set out the facts only that showed the defendant was a second indorser to the plaintiff, and therefore not liable to him, and did not set out the facts necessary to establish a legal liability. I The plaintiff, according to the record here, moved and was permitted to amend the complaint, by alleging an indorsement of the note by plaintiff, and then repeated the question, which was again overruled. do not see how such a general amendment can be deemed as affecting the meaning of the original complaint, nor do I see where it was meant to be inserted. If it was intended to aver an indorsement, without recourse, by plaintiff on the note before the defendant's indorsement, the complaint would not be aided while. its other allegations stood, unless one of these allegations was in substance that the defendant intended to become surety for the maker to the payee. If there were such an allegation, it would be immaterial to state the indorsement without recourse, for that is a mere form, and may be done at any time, even on an appeal (Moore v. Crow, supra). Formerly, according to the opinion of the chancellor in Hall v. Newcomb, supra, such an indorser might be treated as an ordinary indorser, by declaring against him under the money counts, with a copy of the note attached, by virtue of the statute of April 25, 1832, as amended by Laws of 1835, ch. 211 (4 Edm. Stat. 453). Conkling v. Gandall, 1 Keyes, 229, makes it at the least doubtful whether this could be done under section 162 of the Code. But here, there is in the complaint no attempt to charge him, as an ordinary indorser, the special facts, which show the contrary being averred. I, however, think that there appears sufficient on the face of the complaint to show that defendant's indorsement was alleged to be as surety for Totten. At any rate, the defendant so understood, for Opinion of the Court, by SEDGWICK, J. his answer makes denials, as if averments to that effect were in the complaint. The mere fact that the defendant indorsed for a consideration, or value received, would not of itself give the payee a right of action. The defendant would receive the consideration for incurring the liability of second indorser. The complaint goes further, and states that the defendant, after indorsing, delivered the note for value received to the plaintiff, who, on the faith of such indorsement, accepted it. The averment implies that the delivery and acceptance were one act. The acceptance was not general, but on the faith of the indorsement. This modified acceptance characterizes the delivery, which was cotemporaneous. The averment is, therefore, argumentatively, that the defendant delivered the note, that the plaintiff might take it on the faith of his indorsement. This construction of the complaint is such, that the plaintiff should have been allowed to put the question, as relevant to a cause of action stated in the complaint. For the same reason, the second question should have been allowed. As the case stands, its merits have not been fully tried. The judgment should be reversed, with costs, to abide the event. VAN VORST and SPEIR, JJ., concurred. Statement of the Case. PETER RONALDS, PLAINTIFF AND APPELLANT, v. THE MECHANICS' NATIONAL BANK OF THE CITY OF NEW YORK, DEFENDANT AND RESPONDENT. If, on a motion for a reference, there is evidence that the trial of the issues requires the examination of a long account on either side, the finding of the special term that such examination would be required, which finding is involved in the making of an order, is conclusive (Welsh v. Darragh, 52 N. Y. 592; Kain v. Delano, 11 Abb. Pr. N. S. 29). If it appears any account has to be examined, the conclusion that it is to be deemed long will not be disturbed. The characteristics of accounts in evidence, and which make it necessary to send them to a referee, are, that sums have to be remembered, figure for figure, and these sums have to be added, or subtractions made, and interest calculated on various sums from and to various dates. But if, in the consideration of statements of figures as evidence, you can avoid the necessity of their combination, or of the remembrance of their exact amounts, such statements will not necessarily be examined on the trial as accounts, although they contain an assertion of many single circumstances which incidentally exist within the form of an account, and stated in figures: as, for instance, in an action in ejectment, where it is desirable for one party to prove another, who was in possession of the premises, was his tenant, a long account, consisting of many items of rent paid, might be examined, yet it would not be deemed that it would be an examination of the same AS AN ACCOUNT. Held, that in this case the plaintiff's right to claim interest (which is the cause of action) does not depend upon the examination of either of the accounts mentioned in the answer, or of their details, as accounts between the parties, but rests upon the question as to whether or not the defendant refused to pay the checks of plaintiff upon the deposits admitted by both parties; and this question must be determined upon facts extrinsic of the accounts, as such. So far as appears from the pleadings, the verification of either of the accounts set forth in the answer, in respect to each or any of |