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Union Bank v. Cash

84 N.Y.S. 550 Court N.Y. App. Term Decision date 1903-11-06 English

Delivered by BLANCHARD, J.

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UNION BANK OF BROOKLYN v. CASH.
(Supreme Court, Appellate Term.
November 6, 1903.)

Headnote

1. Evidence—Objection—Waiver.
Though evidence of an agreement relieving defendant from liability might have been objected to as varying a written instrument, it having been admitted without objection, is in the record for all purposes.
Appeal from City Court of New York.
Action by the Union Bank of Brooklyn against David K. Case individually and as trustee. From a judgment for plaintiff, and from an order denying a motion for new trial, plaintiff appeals. Affirmed.
Argued before FREEDMAN, P. J., and BISCHOFF and BLANCHARD, JJ.
R. P. Orr, for appellant.
David K. Case, for respondent.

This is an action upon a note which reads as follows:

Ҥ700. f New York, November'28, 1902.
“Four months after date I promise to pay to the order of myself seven hundred dollars at Union Bank of Brooklyn, New York.
“Value received. Charles R. Porterfield.”
Indorsed: “Charles R. Porterfield, Mary Augusta Nott, and Charles R. Porterfield, David K. Case, as Trustee.” ,

The plaintiff introduced the note in evidence and rested. The defendant, Case, took the stand in his own behalf, and testified without objection to an agreement between the Kings County Bank, plaintiff’s

p. 551
predecessor, and himself, the effect of which agreement was to relieve the defendant, Case, from any individual liability, and likewise from liability as trustee, except under certain conditions.

We fail to find any error in the submission of the case to the jury. It may be that, had the evidence introduced been objected to as tending to relieve the defendant, Case, as trustee, from liability in contravention of the terms of the note itself, it might have been error to have admitted it for all purposes, but that contingency is not here presented. The evidence is in the record for all purposes, and as the record stands we fail to find any error.

The judgment and order appealed from should be affirmed, with costs. All concur.