National Discount Co. v. William R. Jenkins Co.

Majority

p. 996

NATIONAL DISCOUNT CO. v. WILLIAM R. JENKINS CO.

(Supreme Court, Appellate Term, First Department.

November 13, 1913.)

Headnote

Bills and Notes (§ 452^[1] )—Defenses—Exclusion of Evidence.

In an action against the acceptor of a draft, who alleged that, the draft was without consideration and that an agreement had been made between the defendant and the payee for its cancellation, which facts were known

p. 997

to the plaintiff when it received the draft, rulings which afforded defendant no opportunity to prove the defense alleged were erroneous.

[Ed. Note.—Eor other eases, see Bills and Notes, Cent. Dig. §§ 1303, 1352-1364, 1367-1376;' Dec. Dig. § 452.*]

Appeal from City Court of New York, Trial Term.

Action by the National Discount Company against the William R. Jenkins Company. From a judgment for plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed, and new trial ordered.

Argued October term, 1913, before SEABURY, GUY, and BI-JUR, JJ.

Raeburn W. Jenkins, of New York City (Michel Kirtland, of New York City, of counsel),' for appellant.

S. C. Sugarman, of New York City, for respondent.

This is an action against the defendant as acceptor of a draft. The answer alleged that the draft was without consideration, and that an agreement had been made between the defendant and the payee for the cancellation of the draft, and that all of these facts were known to the plaintiff at the time of the transfer of the draft to it. .

It may be doubtful whether the defendant could prove the defense alleged, but it is clear that the rulings of the learned court below afforded the defendant no opportunity so to do. The defendant had the right to present its evidence, and the court erred in denying it the opportunity to do so. For this reason, the judgment must be reversed.

Judgment reversed, and new trial ordered, with costs to appellant to abide the event. All concur.