Hayes v. Mestaniz — 29 N.Y.S. 1114

Majority

p. 1114

HAYES v. MESTANIZ.

(Superior Court of New York City, General Term.

July 2, 1894.)

Headnote

Negotiable Instruments—Consideration—Surrender op Former Note.

The surrender of a note is a sufficient consideration for a new note made by defendant, though defendant was not liable on the old note.

Appeal from jury term.

Action by George Hayes against Linbonier R. Mestaniz. From a judgment entered on a verdict directed .by the court in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Affirmed.

Argued before FREEDMAN and GILDERSLEEVE, JJ.

D. S. Ritterband, for appellant.

A. T. Goodwin, for appellee.

The complaint is upon a promissory note made by the defendant to the order of the plaintiff. Upon the trial, the defendant at once assumed the burden of establishing lack of consideration for the note sued upon. At the close of the evidence given by the defendant, both parties moved for the direction of a verdict. Neither claimed that there was any question of fact for the jury. The evidence not only failed to establish lack of consideration, but showed a sufficient consideration; namely, the surrender of a prior note, upon which other parties were liable, even if the defendant, \vho had indorsed the same, was not. This prior note came from the possession of the defendant, and was put in evidence by him. Under the circumstances, the verdict was properly directed for the plaintiff. The judgment and order should be affirmed, with costs.