Sharpstein

The contract on the part of Friedlander was to pay to the plaintiff one-half of any sum he might receive from Sheehv on the notes, or on either of them. Friedlander never did in his lifetime receive from Shcehy any sum on the notes, or on either of them. There was therefore no cause of action against Fried-lander in his lifetime, in favor of the plaintiff, by reason of the agreement set forth in the complaint. It is true that Fried-lander had, before his death, transferred one of the notes for value to the Nevada Bank, but he presumptively remained liable to the bank as indorser of the note, in the event that Shcehy, the maker, failed to pay it; and until this payment by the maker had occurred, Friedlander could not be said to have absolutely, or within the intent of the agreement between himself and the plaintiff, received any sum upon the notes thus transferred. If, immediately upon the transfer being made, the *60 plaintiff here had commenced an action to recover of Fried-lander one-half of the amount of the note transferred, the answer of Friedlander would have been that Sheehy, the maker, had not paid the amount of the note, or any part of it; and if told that he…