Nicholson v. Waful — 70 N.Y. 604

Majority

p. 604

Samuel L. Nicholson, Respondent, v. Heman Waful, Appellant.

(Submitted April 9, 1877;

decided June 12, 1877.)

Headnote

Nicholson V. Waful ( 6 Hun, 655 ), reversed.

This action was brought upon a promissory note of $450. (Mem. of decision below, 6 Hun, 655 .)

The answer denied the making of the note, and alleged that if signed by defendant it was while intoxicated, and was given without consideration. Upon the trial of the action, plaintiff’s evidence was to the effect that the note was given for a loan. Evidence was offered on the part of defendant of acts and declarations on the part of plaintiff, at a time some two or three years prior to the alleged loan, inconsistent with the ownership of money by him. This was objected to and excluded, and upon this ground the judgment was reversed by the General Term. It had been shown beyond question that plaintiff had a certificate of deposit of $400, which he

p. 605

got cashed on the day that the note was given, and also that he loaned $135 the year before. Held, that the evidence excluded was too remote and inconclusive, and that the rejection thereof was not error.

Lansing & Rogers, for appellant.

N. Whiting, for respondent.

reads for reversal of order granting a new trial, and affirmance of judgment entered on report of referee.

All concur.

Order reversed and judgment affirmed.