American Brass & Copper Co. v. Pine

Headnote

Bills, notes and checks — action to recover on promissory notes — consideration.

American Brass & Copper Co. v. Pine, 185 App. Div. 473 , affirmed.

Appeal from an order of the Appellate Division of the Supreme Court in the first judicial department, entered December 13, 1918, reversing a judgment in favor of defendants entered upon a dismissal of the complaint by the court at a Trial Term without a jury and granting a new trial. The action was to recover on six promissory notes for $100 each, made by the defendant Mendel M. Pine, in his trade name, to the order of the ■plaintiff, and indorsed by the other four defendants. The defendants served separate answers in which they denied that the plaintiff gave value for the notes and alleged that the first of said six notes had been paid before the commencement of this action, and further alleged both as a defense and by way of an equitable counterclaim, that the notes in suit were part of a series of seventy-three notes- delivered by the defendant Mendel M. Pine to plaintiff pursuant to an agreement whereby plaintiff undertook to extend credit to said defendant in the purchase of merchandise and that plaintiff failed to perform said agreement and asked judgment rescinding said agreement and directing the surrender of the unpaid notes. The trial court dismissed the complaint on the ground that the sole consideration for the notes in question was a promise by plaintiff to extend a line of credit to certain of the defendants, which promise was so vague and indefinite as to be incapable of ascertainment and enforcement. The Appellate Division held that there was testimony tending to show that the real consideration was the extinguishment of a debt owing to plaintiff by a bankrupt corporation owned and controlled by certain of the defendants.